TMI Blog2001 (9) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of membership of a Stock Exchange is a personal privilege granted to a member and it is non-transferable and incapable of alienation by the member or his legal representative or heirs. It is submitted that the Hon'ble Supreme Court reversed the judgment of the Hon'ble Gujarat High Court in the case of Stock Exchange v. Asstt. CIT [1998] 231 ITR 906, relied upon by the Tribunal. 3. It is submitted that there is a mistake apparent from the record in the order of the Tribunal inasmuch as following the law laid down by the Supreme Court it has to be held that membership of a Stock Exchange cannot be treated as an asset and therefore not exigible to gift tax or wealth tax. 4. In the second application it is submitted that the finding r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous other aspects. It was submitted that the rules of the DSE and Ahmedabad Stock Exchange were quite different and that the Hon'ble Supreme Court in Stock Exchange, Ahmedabad's case was considering the case of a defaulter where the Income Tax Department was trying to attach the card for recovery of the tax dues. According to the learned Special Counsel one had to distinguish between the case of a person who was dead and one who was alive vis-a-vis membership of a Stock Exchange etc. It was submitted that in the case relied upon by the learned counsel, i.e., Stock Exchange, Ahmedabad's case the court was dealing with the case of a deceased member of the Stock Exchange whereas in the case of J.N. Syal he had gifted a share of DSE to his son. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but before we do so we have also to categorically observe that a review of an order by the Tribunal is not permitted in law but a mistake apparent from the record is necessarily to be rectified. 10. On the basis of the aforesaid we advert to the facts of the present case. The decision of the Gujarat High Court in Stock Exchange Ahmedabad's case was referred to by the parties in their respective arguments but the Tribunal nowhere in the operative portion of its order has relied on the said judgment. It may not be out of place to mention that Shri O.S. Bajpai himself relied on the said judgment to some extent and also sought to distinguish it. The following observations of the Tribunal at pages 9 and 10 of the order are relevant: "The le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Bench order). 13. Two other cases relied upon on behalf of the assessee were Vinay Bubna v. Stock Exchange [1999] 97 Comp. Cas. 874 (SC) and Official Assignee of Bombay v. K.R.P. Shroff [1932] AIR PC 186. According to the M.A., these have been relied upon by the Hon'ble Supreme Court in Stock Exchange Ahmedabad's case but it is noticed from para 11 of the order of the Tribunal that these are held to be not applicable as follows: "Therefore, according to the learned Standing Counsel for the department none of the three cases on which heavy reliance was placed by the assessee come to his rescue or support the propositions sought to be canvassed on his behalf. We agree with the contention of the learned Standing Counsel that in all thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DSE were capital assets. At page 76 the meaning of the term "property" as per Black's Law Dictionary was also taken into account and in para 31 of the Tribunal held that the term "asset" had got a very wide connotation and the decisions of the Hon'ble Supreme Court in Ahmed G.H. Ariff v. CIT[1970] 76 ITR 471 and Purshottam N. A marsav v. CIT [1973] 88 ITR 417 were followed. 15. In the present M.A. it is nobody's case that these legal propositions or the decisions of the Hon'ble Supreme Court have been overturned by the decision in Stock Exchange, Ahmedabad's case. 16. It is quite clear from the discussion in the preceding part of the present order that the Special Bench has not based its decision on the judgment of the Hon'ble Gujara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26 of its order considered the judgment of the Hon'ble Supreme Court in Delhi Stock Exchange Association Ltd's case and the decision of the Hon'ble Delhi High Court in Delhi Stock Exchange Association Ltd.'s case came later, i.e., after the judgment of the Special Bench. In our opinion, there is no mistake much less a mistake apparent from the record vis-a-vis submissions on behalf of the assessee in the second application since the Tribunal applied the law laid down by the Hon'ble Supreme Court in Delhi Stock Exchange Association Ltd.'s case which was the decision before it at the time of hearing. Even if on assumption we were to hold that such judgment was not applicable for the assessment year under consideration, it would be very relev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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