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TMI Blog1984 (11) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... of property at ' Marina Hotel ', New Delhi, in accordance with rule 1BB of the Wealth-tax Rules, by holding that though this rule came into existence on 1-4-1979 yet it had retrospective effect." 2. At the time of the hearing of the reference application by the Division Bench, it was found that whereas in a large number of cases references have been made on similar question for the opinion of the Hon'ble High Court, a few Benches of the Tribunal have taken the view that no referable question of law arises on the above matter. These orders were mainly in the case of D.G. Bhagat [Reference Application Nos. 1123 to 1126 of 1981, 1457 to 1461 (Delhi) of 1982 and 597 to 601 (Delhi) of 1983], in the case of Mohd. Haroon Japanwala [Reference Appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee and, therefore, has a bearing on the wealth-tax liability. It was also submitted that rule 1BB was given effect from 1-4-1979 and whether this rule could be extended to all the other assessments for the earlier assessment year, raises a question of law. It was pointed out that the matter was not concluded by any decision of the Supreme Court, which could make the matter academic. He referred to the order of the Tribunal in the case of D.G. Bhagat and submitted that the main reliance of that Bench was on an order of the Delhi High Court, dismissing a petition under section 27(3) on the question of retrospective operation of section 7(4) of the Act, but this could not cover this issue as this relates to rule 1BB, which has to be dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that there is no dispute before us that a question of law does arise in respect of the effect of rule 1BB and the only question is whether it should not be referred if the answer to the same is self-evident and/or of academic value in view of any decision of the Supreme Court. 6. Retrospective operation of a particular provision of the Wealth-tax Rules has to be considered in the context of section 46(3) of the Act, which is as under : " (3) The power to make rules conferred by this section shall include the power to give retrospective effect, from a date not earlier than the date of commencement of this Act, to the rules or any of them and, unless the contrary is permitted (whether expressly or by necessary implication), no retrospect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the question of law should be referred to the High Court, the learned Third Member held as under : " 3. The learned counsel for the assessee has raised an important point on which emphasis has also been placed by the learned Judicial Member, namely, that procedural provisions have retrospective effect is a well settled proposition and it would be not correct to refer such a self-evident question of law. Even so, the other question remains as to whether the finding of the Tribunal that rule 1BB is a procedural provision which I find, is a question of law to be referred to their Lordships. Apart from the fact that the learned Accountant Member refers to other decisions where a question of law, as suggested in the application itself, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, as held by the Tribunal in the case of Biju Patnaik. In this connection, it will not be out of place to mention that the Bombay High Court had held in the case of Smt. Kusumben D. Mahadevia v. N.C. Upadhya [1980] 124 ITR 799 that rule 1D is directory and not mandatory, in spite of the use of the word ' shall ' in the Rules. We, therefore, proceed to draw up statement of the case. 7. The assessee is an individual having one-fourth share in a property known as Marina Hotel. The value declared by the assessee had not been accepted by the WTO, who determined the value on the basis of a valuation report which had fixed the value of the property at Rs. 56,87,000 and the assessee's share at Rs. 14,21,950. The assessee filed an appeal before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he meaning of rule 1BB and if he is satisfied, he will proceed to value the property in accordance with the rule. The Tribunal followed the order of the Special Bench as well as the order in the case of the co-owner, Mohd. Haroon Japanwala, and dismissed the departmental appeal. The orders of the WTO, the Commissioner (Appeals) and the Tribunal are at Annexures ' A ', ' B ' and ' C ', respectively, and they from part of the statement of the case. 9. It is on the above facts that question of law as given in paragraph No. 1 has been raised. We find that the Tribunal has dismissed the departmental appeal and had confirmed the order of the Commissioner (Appeals). We would reframe the question as under : " Whether, on the facts and in the cir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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