sum and substance of all grounds in both these appeals is to dispute levy of penalties under Estate Duty Act, 1953 ('the Act') for non- deposit of provisional tax demand which was made by Assistant Controller and same having been confirmed by Appellate Controller in course of accountable person's first appeal for both penalties on basis of his finding that until payment of provisional tax demand, appeals filed were not maintainable. 2. facts in background pertaining to issue are in short compass. As per return of estate duty filed by Mr. Deepak Sharma, provisional demand of Rs. 37,102 was created and when accountable person was required to deposit same, he vide his letter dated 13-3-1980 submitted to Assistant Controller that said amount of Rs. 37,102 may kindly be recovered out of two life insurance policies of deceased, respectively, for Rs. 23,000 and Rs. 8,000, numbers of which were given in said letter. Since, LIC authorities, as per order of Assistant Controller levying penalties, admitted only liability of Rs. 2,446 for balance amount of estate duty in sum of Rs. 32,210, Assistant Controller levied penalty of Rs. 3,400 on 21-10-1980 and again of Rs. 5,000 on 10-2-1982. Though efforts were still on to recover amounts from LTC on 14-5-1982 and 15-4-1983, Assistant Controller further recovered sum of Rs. 21,262 and Rs. 1,152, respectively, from LIC. 3. When two appeals disputing levy of penalties of Rs. 3,400 and Rs. 5,000 came to be heard by Appellate Controller, he on 3-11-1982 and 4- 11-1982, respectively, disposed of two appeals holding that same are not maintainable as he observed that only Rs. 2,446 as part payment of estate duty amount was paid by accountable person. 4. While disputing this action of Appellate Controller, learned counsel for accountable person, Mr. S.K. Goel, relied on cases of Kaja Mian Wakf Estate v. CED [1977] 106 ITR 98 (Mad.), CED v. Estate of Late M. Kuppuswami Naicker [1977] 110 ITR 127 (Mad.) and CED v. Estate of Late Chandravadanam Ammal [1978] 111 ITR 50 (Mad.), against which learned senior departmental representative, Mr. R.K. Bali, beside relying on orders of two lower authorities, placed his reliance on cases of Jibanitosh Ghatak v. ACED [1974] 95 ITR 486 (Cal.), Navin Chandra Bhimji v. CED [1979] 116 ITR 465 (Cal.) and T.T.P. Beepathumma v. Special Deputy Tahsildar [1982] 134 ITR 488 (Ker.). 5. After taking into consideration rival submissions, we find following facts, which are uncontroverted: (i) Provisional demand of estate duty created amounts to Rs. 37,102. (ii) deceased, Shri Romesh Dutt Sharma, who died on 9-6-1979 held following two policies numbering 23643630 for Rs. 23,000 and 23266432 for Rs. 8,000. (iii) On 13-3-1980 when accountable person was required to explain non-deposit of provisional tax, he made request to Assistant Controller to collect same from LIC. (iv) Initially Assistant Controller collected Rs. 2,446 from LIC and, therefore, for balance he levied penalties consecutively twice, viz., of Rs. 3,400 and Rs. 5,000. (v) Assistant Controller subsequently collected Rs. 21,262 on 14-5- 1982 and Rs. 1,152 on 15-4-1983. (vi) two appeals of accountable person were decided by Controller, respectively, on 3-11-1982 and 4-11-1982. On basis of above stated uncontroverted facts, Controller was not justified to dismiss two appeals of accountable person on basis that same were not maintainable. 6. In case of Kaja Mian Wakf Estate, when stay for deposit of estate duty was obtained by accountable person, their Lordships of Madras High Court held that Appellate Controller should have taken note of said order of stay and even if appeal was incompetent, he should have considered excusing delay under section 62(2) of Act. In instant case, for sum of Rs. 24,860 there is no dispute that said amount had reached Government treasury before two appeals were dismissed having been held as non-maintainable. Therefore, it was ker case for condonation of delay. In another decision of Estate of Late Chandravadanam Ammal, when Assistant Controller had granted time, it was considered enough basis for condonation of delay till date, time was granted. Again, instant case is on ker footing. As stated above, two-thirds of amount had already reached Government treasury. third case is also of Madras High Court, Estate of Late M. Kuppuswami Naicker, in which instalments were granted by Assistant Controller and same having been complied with, it was held that proviso to section 62(1) was satisfied. Reliance of learned departmental representative on three cases, referred to above, is misplaced because they are entirely on different issue. Once Assistant Controller had been requested to recover amount from LIC and he could recover to extent of about Rs. 25,000, accountable person could not be treated in default for entire amount and levying of two penalties on basis of non-deposit of Rs. 4,656 was hardly called for. There is no controversy about fact that progress of recovery of estate duty from LIC by Assistant Controller was not even intimated to accountable person as stated at bar by learned counsel for accountable person. accountable person was all through pressed for total amount inclusive of penalties, which was certainly very harsh, when actually accountable person could be required to pay only balance, which he ultimately paid before coming to Tribunal in sum of Rs. 12,000 or so. Then on basis of these two facts, two consecutive penalties were hardly called for on peculiar circumstances of this case when major amount was to be recovered from LIC and was actually recovered, though subsequently. However, we are hardly concerned with merit because Appellate Controller has dismissed appeals having been found non-maintainable for non-deposit of estate duty on provisional assessments. We, therefore, restore back both matters to his file with direction to adjudicate same de novo on merit, after giving full opportunity to accountable person and taking into consideration all above stated facts. 7. In result, both appeals are treated as allowed for statistical purposes. *** DEEPAK SHARMA v. ASSISTANT CONTROLLER OF ESTATE DUTY