374- WIJEYEWARDENE A.J.—Ibrahim Saibo v. Commissioner of Stamps.'
1938Present: Poyser S.P.J. and Wijeyewardene A.J.
IBRAHIM SAIBO v. COMMISSIONER OF STAMPS.
64—D. C.. Kandy, 5,176.
Estate duty—Final assessment not questioned by way of appeal—Assessee notentitled to attack assessment in citation for execution—Estate DutyOrdinance, No. 8 of 1919, ss. 22 (3) and 32.
Where a person has failed to appeal from an. assessment for estateduty under section 22 (3) of the Estate Duty Ordinance, he is not entitledto question the correctness of the assessment in proceedings for executionunder section 32 of the Ordinance.
^f^PPEAL from an order of the District Judge of Kandy.
H. V. Perera, K.C. (with him Peri Sunderam), for. appellant.
S. J. C. Schokman, C.C., for respondent.
Cur. adv. vult.
October 14, 1938. Wijeyewardene A.J.—
This is an appeal by an administrator from an order made against himunder section 32 of The Estate Duty Ordinance, No. 8 of 1919, in respectof the estate of one Y. M. Ibrahim Saibu, who was a partner of the firmof K. Abram Saibu & Co. In July, 1933, the appellant who had appliedfor letters of administration delivered a statement of assets and liabilitiesof the estate to the Commissioner of Stamps under section 21. Amongthe assets he included—
(i) Amount at credit at Messrs. K. Abram
Saibu & Co., to October 31, 1929..105,250 50
(ii) Amount at interest at Messrs. K. Abram
Saibu to March 31, 1931.8,094 15
WIJEYEWARDENE A.J.—Ibrahim Saibo v. Commissioner of Stamps. 375
The Commissioner of Stamps made what he called a “ provisionalassessment of duty” in August, 1933, accepting the statement of assetsas correct and disallowing the liabilities for the purposes of the provisionalassessment. To this assessment was appended the following note: —“This assessment is provisional and is liable to revision after verificationof the assets and liabilities of the estate. It is granted to make theexecutor (sic) to obtain letters of administration expeditiously”. Theestate duty was finally fixed at Rs. 3,426.35 and the administrator paidthe amount and applied for letters of administration.
After obtaining the letters of administration, the appellant "filed actionNo. 46,937 in the District Court of Kandy against K. Abram* Saibu &"Company for the recovery of Rs. 113,344.65 due to the estate. It isalleged that the administrator fixed the amount' due as Rs. 113,344.65without an examination of the books of account of the firm which werenot made available to him by the partners of the firm. It is furtherstated that at the trial the lawyers examined the books and found thatthe sum due in fact was only Rs. 25,473.52 and a consent decree wasentered on July 27, 1936, for Rs. 26,000 in favour of the estate. By hisletter A 3 of September 14, 1936, the administrator intimated to theCommissioner of Stamps the result of the case and desired him to reduceto Rs. 26,000 the two assets valued in his declaration at Rs. 113,344.65.In the meantime the Commissioner of Stamps served on the appellant inAugust 18, 1936, what was called an “ Additional Assessment of Duty ”showing that he has increased the nett value of the estate adopted for theprovisional assessment by Rs. 77,293 and claiming an additional amountof Rs. 5,221.23 as additional estate duty. On September 28, 1936, theCommissioner of Stamps replying to A 3 refusing to accept the decree ofconsent entered in D. C. Kandy, 46,937, as sufficient evidence of the-correct value of the two assets in question and intimating that the assess-ment of August 18, 1936, has now become final'.
On the appellant making default in the payment of the additionalestate duty of Rs. 5,221.23 the Commissioner of Stamps obtained acitation against him, and the District Judge after inquiry directed writto issue against the appellant for that amount. -The present appeal isfrom that order of the District Judge.
The learned Counsel for the appellant contends that no assessment hasbeen made as required by section 22 of the Ordinance and that as therewas no occasion for him to appeal under section 22 (3) against an assess-ment he is at liberty to show cause against the issue of writ by pointingout that that the assets have been overvalued in the “ provisional ” andadditional assessments.
The “ provisional ” assessment was an assessment made for a limitedpurpose as indicated by the Commissioner in his endorsement on thevaluation while the “ additional ” assessment is undoubtedly the finalassessment which the Commissioner had to make under section 22 aftercausing “ a statement and estimate to be made by any assessor or assessorsto be appointed by the Commissioner ”. In his affidavit of objectionsfiled in November, 1937, after notice was served on him to show causeagainst the issue of writ, the appellant himself referred to the
SOERTSZ J.—Apvuhaviy v. Mohamed Ally.
“ additional ” assessment as the final assessment and the proceedings inthe District Court show that the inquiry was held on the footing that theassessment was the final assessment under section 22. *The “ additional ”assessment therefore is binding on the appellant as he failed to appealagaint such assessment under section 22 (3).
I do not think that a person cited under section 32 is entitled to reopenthe question of the correctness of the assessment in an inquiry held underthat section. (Vide 76, D. C. Jaffna, 220—S. C. Minutes of July 22, 1924.)
1 dismiss the appeal with costs.
Poyser S.P.J.—I agree.
IBRAHIM SAIBO v. COMMISSIONER OF STAMPS