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1. This appeal by certificate by the Controller of Estate Duty directed against the order dated August 17, 1978, of the High Court of Patna in C. W. J. C. No. 202 of 1976, raises a short and interesting question as to the scope and interpretation of Section 50B of the Estate Duty Act, 1953 ("the Act", for short).

2. The estate to which the proceedings for assessment of duty relate, was of the late Sir J.J. Gandhi, who died on April 17, 1972. Mrs. Roshan Jahangir Gandhi was the accountable person. A sum of Rs. 3,16,026 was determined as the provisional duty. The accountable person having had no immediate cash to meet the demand for provisional duty, borrowed on December 27, 1972, sums aggregating to Rs. 3,36,000 out of which the provisional duty of Rs. 3,16,026 was paid on March 23, 1973. On April 10, 1974, she sold certain shares forming part of the estate to discharge the said borrowings. Indeed, the sale was made to the lender from whom the major borrowing had been made. Upon the sale of the shares, she became liable to pay capital gains in the sum of Rs. 90,158 which she duly paid. Basing on the provisions of Section 50B of the Act, she claimed to be entitled to a rebate respecting this payment of capital gains. Section 50B of the Act reads :

3. This claim for the refund based on this provision was refused by the Revenue. The Revenue, upon a strict and literal construction of Section 50B, took the view that the payment of duty was, quite obviously, not directly out of the proceeds of the transfer of the shares as, indeed, the payment of duty was anterior to the transfer and that, therefore, the requirements of Section 50B of the Act were not satisfied.

4. The contention of the respondent, however, was that Section 50B was a beneficial provision and required to be construed liberally and that there was a substantial compliance with its requirements. It was urged that Section 50B did not lend itself to the construction that it stipulated payment of duty directly out of the proceeds of the transfer, but, in so far as it contemplated the application of the proceeds of the transfer towards "payment of the duty", its requirements were satisfied in this case.

8. In the further communication dated January 18, 1973, from the Controller of Estate Duty to the accountable person, it was stated :

It is hereby certified that the estate duty payable on provisional assessment under Sub-section (1) of Section 57 of the Estate Duty Act, 1953, will be paid or that no estate duty is due in respect of the property hereinafter described as passing on the death of Sir J.J. Gandhi of Jamshedpur who died on the seventh day of April, 1972.

9. It is, therefore, clear that the borrowing was made exclusively for the payment of the provisional duty and the subsequent transfer of the shares was also exclusively for the purpose of discharging the loan so earlier obtained. Sri K.N. Shukla, learned senior counsel for the Revenue, contended that even if all these facts are admitted, no rebate under Section 50B of the Act was permissible. He urged that a taxing provision knows no equity and would be strictly construed according to the words used. Learned Counsel emphasised that the words "out of the proceeds of transfer" would clearly exclude from Section 50B, a case such as the one in hand where the duty was paid out of the borrowing and not out of the proceeds of transfer, though the borrowing was later repaid by the proceeds of transfer. But, Sri Joseph Vellapally, learned senior counsel for the respondent, understandably, emphasised the significance of the words "paid towards estate duty" which, according to him, will take in a non-direct payment also where substantially, if not strictly chronologically, the proceeds of the transfer have gone "towards the duty".

10. As to the requirement of a strict construction, a distinction would perhaps have to be made between a provision imposing a tax as from a provision dealing with or relating to a tax. "It is the essential nature of the provision that has to be considered, its primary or subordinate place in the scheme of the enactment." The interpretation of Section 50B contended for by the accountable person and accepted by the High Court, in our opinion, is an eminently arguable one, though another view may also be possible. The Estate Duty Act, 1953, was itself repealed in the year 1985. The question raised is, therefore, no longer of any general public importance. If two views are possible on the scope and construction of Section 50B and one of them has appealed to, and been accepted by, the High Court and the view cannot also be said not to advance the cause of justice, there is hardly any justification to interfere where the Act itself has since ceased to exist. The question of law raised in the appeal is really sterile as it cannot arise hereafter. In CST v. S.K. Manekia [1991] 83 STC 34 (SC), dealing with an analogous situation, this Court had occasion to say (at page 36) :