TMI Blog1995 (4) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... is not seeking a review but a recall of the order for proper adjudication of the points. In view of this situation, we allowed Shri Dastur to proceed. 3. In the course of his arguments, Shri Dastur made a grievance that in ITA No. 345/PN/85 there is only an observation in para 10 that other case law is also clearly distinguishable, but no point of distinction is actually given. We have however, referred to this aspect in para 8 of WTA Nos. 334344/PN/85. There was no dispute with the principles therein. CWT v. Bhogilal H. Patel [1978] 112 ITR 910 (Bom.), is an authority only for the limited proposition that where dividends are declared subject to obtaining remittance from Pakistan conditional declaration does not create a debt due to the assessee and that consequently, the amount of such dividend is not includible in the net wealth. The ratio of this judgment thus does not touch the issue regarding valuation of a debt which was being considered by the Tribunal. Similarly, CWT v. Raghubar Narain Singh [1984] 146 ITR 228 (SC) is regarding the valuation of rights to receive zamindari compensation with reference to deduction of arrears of agricultural income-tax and hazards of litiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the debtor nor the situs of the debts were given with the precision required for finding out whether the provisions of section 31(7) are attracted. As no data whatsoever was produced or sought to be produced the Tribunal held that even if there might be some difficulty soon after liberation, unless it is shown by some proper evidence that there were real fetters in realisation of the value, difficulties in remittance may not warrant a departure from the conclusion for the earlier years. Our notings also show that no specific request was made for permission to produce additional evidence or that such evidence already existed. 6. The third factual aspect brought out by Shri Joshi was regarding the correspondence between the assessee and the Government of India. This aspect was also duly examined even though the same did not exist on the valuation dates prior to 1971-72. The conclusion emanating from this correspondence was that the debts are still realisable though remittance in the form of cash might be beset with difficulties. The question was examined in the light of the fact that the assessee was himself prepared to bring the entire amount disclosed by him if only he was pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l cannot depart from an agreed position. There is thus a clear error in the Tribunal finding that there are no restrictions or prohibition on the remittance. The Tribunal should therefore have given reasonable opportunity or sent the matter back for re-adjudication on the issue. Shri Dastur next contended that the Tribunal has also not taken note of the contents of the correspondence that goods could not be imported from Portugal and South Africa. Lastly, the Tribunal has also not given due importance to the contention made that the matters have remained stagnant all along. Regarding the observation of the Tribunal that there was no evidence in support of the contention regarding restriction or prohibition on remittance Shri Dastur contended that all that Shri Joshi admitted was that there was no evidence at present. It was not the contention of Shri Joshi that if time was given, evidence could not have been produced. 9. Shri Dastur next contended that it is not an infallible rule that in the course of M.A. no new material can be looked into. In support of this contention, he referred to CIT v. Nopany Education Trust [1986] 159 ITR 367 (Cal.). In this case, the Tribunal proceeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred within the scope of section 154 need not exist at the time of decision of the particular authority. 12. Shri Dastur then submitted that the Indo-Portugal Treaty constitutes law and if the same is not considered, though due to be considered, it would constitute a glaring and obvious mistake of law. In support, lie relied on CIT v. Ram Nath Prem Kumar [1980] 124 ITR 404 (Punj. Har.) where the ITO had overlooked statutory provision of section 40A(3) and it was held that such an over-looking constitutes a mistake apparent from records. He also placed reliance on D. S. Chenai v. WTO [1985] 11 ITD 9 (Hyd.) and Indocean Engg. (P.) Ltd. v. ITO [1985] 14 ITD 483 (Hyd.). According to Shri Dastur, article of indo-Portugal Treaty provides a complete answer to the question regarding restriction on remittances, difficulties in realisation etc. and nothing would be recovered at least till then. Thus only when these restrictions and prohibitions were removed in 1975 there could perhaps have been a debt of any value. 13. Shri Dastur was aware of the fact that the provisions of section 31(7) as interpreted by the WTO were not the sole basis for coming to the conclusion regarding the value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same factual and legal position but does not stop the parties from pointing out new aspects - CIT v. S. Devaraj [1969] 73 ITR 1 (Mad.). It would be improper to suggest that the earlier Tribunal has misdirected itself on law, on any of the points now canvassed by Shri Dastur. The Tribunal has examined the issue fairly and objectively. It is now settled law that the decision of the Tribunal is not to be examined through a microscope as it were. In a M.A., there is no scope for re-examine the issues. The order of the Tribunal may not mention the various aspects in the manner in which the losing party would like it to be but this cannot warrant acceptance of M.A. which proposes wholesale review which would go out of the purview of glaring and obvious mistakes. From the order, it cannot be said that the Tribunal has not examined any of the aspects. The overall picture emerging is that the Tribunal was fair in giving a further opportunity even at the Tribunal stage to the assessee to present any factual or legal points not considered by earlier Bench. All the new aspects raised have been duly dealt with. There was not even a request from the learned counsel for admission of new evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssets also proposes to bring the amounts to India though not in cash. The word 'frozen' has then limited impact on the question of the existence of assets or valuation thereof. Further, DR referred to assessee's letter dated 6-5-1975 to the Finance Minister in which the assessee has stated as below: "To summarise our case, I may state that I was engaged in transacting banking business before liberation of Goa and used to finance the importers to import goods. According to the regulations in Goa, the importers in Goa were allowed to import goods without providing foreign exchange and I used to procure foreign exchange for the importers through my Lisbon partner. Due to sudden police take over in Goa, my advances to the tune of Rs. 2.17 crores (pound 1.1 million) were blocked in abroad via Lisbon". 17. Regarding the alleged excessive exercise of jurisdiction by going beyond the agreed position regarding section 31(7) the DR pointed out that there is an apparent fallacy in this argument. Section 31(7) refers to grant of stay which does not say anything about the valuation of assets. If as now contended the value of asset where stay under section 31(7) is due is to be NIL the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee who stated that he can bring the amounts in a particular manner. This would normally show that notwithstanding absence of written contract as alleged or the expenses or alleged time-bar, the assessee still considered himself confident of bringing the money if only he was given permission to bring the same to the extent of 100% in the form of machinery. Lastly, the question of valuation does not depend upon the decision which the Government may take on particular facts. Nevertheless the Tribunal has in a fair manner held that since after 1976 the matters have remained stagnant there could be some hesitation on the part of the prospective buyers taking over the rights of the assessee at par value and gave some deduction. The Tribunal has rightly left the issue open for later years. 19. In the course of hearing, an attempt was made by Shri Dastur to show that the fact that the debt was expressed in sterling has also been taken out of context. Shri Dastur tried to produce an opinion of one Advocate Shri Pariera. But such opinion cannot be taken unless expert himself is available. Besides there is nothing to show why such an opinion could not be led at the time of hearing. Nothi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 1976, the Tribunal was prepared to give discounting means for earlier year also substantial discounting was warranted. 22. We have examined the various facts and arguments. In our opinion, the Tribunal has examined as objectively as possible all the facts of the case. It found as a matter of fact that although the assessee was claiming that he had at one foreign debtor, he never gave particulars with the precision required. He merely used broad language as frozen. The word 'frozen' is to be read in the particular context. The very WTO who granted stay under section 31(7) had no doubt about valuation of the asset. This was also the view held by ITAT in earlier years. Thus, the decision of the WTO regarding grant of stay has no direct bearing on the point. We do not also agree with the proposition that the grant of stay in respect of tax on certain assets which cannot be remitted to India without difficulty is determinative of the true character of the debt or its value. The Tribunal has taken note of the various contentions regarding time-bar, absence of documents, alleged restrictions etc., and yet found that there is no material to warrant a departure from the earlier conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or assisting us in arriving at proper decision. It is true that the Tribunal has held that no evidence was produced regarding the alleged prohibition or restriction. But the Tribunal also made-it clear in para 12 of its combined order (WTA Nos. 334-344) that it would not express any opinion on the stay granted by the WTO as the same is not relevant for our purpose. As pointed out by the DR this provision (section 31(7), and the provisions regarding valuation operate in their own fields. If as now contended, the applicability of section 31(7) automatically brings out the value of the movable assets to NIL there would be no question of applying the provision as the demand itself would be NIL. The Tribunal also has found on the basis of evidence that the value of the debt could as well have been higher than the original declaration. Thus, it is the combined effect of all the facts that has led the Tribunal to value the asset in a particular manner. It cannot therefore be said that there is any mistake glaring or obvious of facts or of law arising in this case. 24. For these and other reasons canvassed by the DR, we hold that there is no merit in these M. As which stand rejected. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived as Portugal was an enemy country and that the Government of India did not agree to the suggestion for 100% of goods and the Government insisted upon 50% repatriation of the balance and nothing could be done. 5. The WTO and the AAC did not accept these contentions. The WTO added the entire rupee value of the balance to the assessee's wealth for all the years in question. But the WTO did not start recovery and kept the demand in abeyance under section 31(7) of the Wealth-tax Act. The assessee went in appeal before the Tribunal. Whether the right to receive the foreign balance was an asset or not was a question to be decided by the Tribunal. The Tribunal decided that it was an asset of the assessee. The second question before the Tribunal was what was the value of that asset. The assessee took support from the judgment of the Gujarat High Court in the case of Sadiqali Samsuddin to decide the value of the asset. 6. It was contended on behalf of the assessee that no value of the said asset was includible or in any event, the value of the said asset would be nil because there was on documentary evidence to prove the claim. The claim was barred by law of limitation and no remi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g demand in abeyance under section 31(7) of the Wealth-tax Act for the assessment year 1969-70 and of not treating the assessee as a defaulter. The WTO has specifically mentioned that "The tax on foreign assets of Rs. 1,03,57,678 located outside India is kept in abeyance under section 31(7) of the Act." The recovery for subsequent years also is kept in abeyance under the said section. The funds could not be repatriated to India from Portugal was not challenged by the WTO as he kept the demand in abeyance. 8. Shri Dastur contended that the Tribunal's finding that there is no prohibition or restriction on repatriation is inconsistent with the factual position which becomes clear from the correspondence between the assessee and the Government of India. This correspondence was on the record of the lower authorities and Tribunal. The Tribunal would not have gone away from this finding of the WTO. The judgment of the Allahabad High Court in the case of J.K. Bankers was cited before the Tribunal and relied upon by the assessee urging that it was not open for the Tribunal to adjudicate or to give a finding on questions which were not in dispute and which did not form a part of the subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord with the Tribunal at the time of hearing of the appeal. He has relied upon the judgment of the Supreme Court in the case of Mahendra Mills Ltd. and Nopany Education Trust's case. In the case of Mahendra Mills Ltd., the Supreme Court has held that for fixing the value of the opening stock for the assessment year 1960-61, the value placed by the Tribunal in the appeal for the assessment year 1959-60 should be considered. The Supreme Court overruled the contention that the decision of the Tribunal for the assessment year 1959-60 could not be looked into because it was given after the decision of the AAC for the assessment year 1960-61. According to Shri Dastur, it is permissible to consider matters relating to earlier assessment year and which was not before the appellate authority at the time of passing the order. In the case of Nopany Education Trust , the assessee, a public charitable trust, received donations from two other trusts. The ITO held that as the donor trusts were charitable trusts and hence the donations were hit by section 12(2) of the Income-tax Act. The Tribunal accepted the contention that the donor trusts were family trust and hence the provisions of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to accept the same value in his case also and the Tribunal accepted his claim. Subsequently, the assessee discovered that his contention to accept the value of Rs. 42,50,000 was based on a mistake because the Tribunal had confirmed the value at Rs. 18 lacs on appeal by the other co-owners. Therefore, the assessee made an application for rectification of the order under section 254(2). The Tribunal allowed the assessee's miscellaneous application, reheard the appeal and confirmed the value at Rs. 18 lacs. The department's applications both under sections 256(1) and 256(2) were rejected. The Delhi High Court has held that the Tribunal has accepted the position that the earlier order was based on mistaken assumption. The decision of the CIT (Appeals), Chandigarh had become final was factually wrong, When that assumption was found to be incorrect, the Tribunal was justified in setting aside its order and considering the issue afresh. 12. Shri Dastur has contended that in the light of the decisions in the case of Mahendra Mills Ltd. , Nopany Education Trust , Shakuntala Rajeshwar when the correct legal position had been brought to the notice of the Tribunal even at the stage of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s inability to produce an evidence, then there would not have been no scope to blame the Tribunal, but the Tribunal did not do so. Shri Dastur has urged that the issue before the Tribunal was whether there was prohibition or restriction on remittance and whether the provisions of section 31(7) of the Wealth Tax Act were correctly applied by the WTO. Shri Dastur has argued probable findings on the said issue. According to him, in the ordinary course, there would have been three alternatives which are as follows : (1) No finding has been given by the Tribunal, (2) The Tribunal has held that there were no restrictions, (3) The Tribunal has found that there were restrictions. 14. Shri Dastur forcefully put forward that if the Tribunal has not given any finding on the issue, then its order would necessarily have to be recalled. If, on the other hand, the Tribunal has given a finding that there are no prohibitions or restrictions, then this finding is contrary to the evidence on record which was before the Tribunal at the time of hearing of the appeal and for this reason also, the order would have to be recalled. Thirdly, if the Tribunal has given a finding that there are restr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time of rehearing of the appeals. 18. In the result, the miscellaneous applications are allowed as above. ORDER UNDER SECTION 255(4) OF THE INCOME-TAX ACT, 1961 In accordance with section 255(4) of the Income-tax Act, 1961, the following point of difference of opinion is referred to the President of the Income-tax Appellate Tribunal : "Whether on the facts and in the circumstances of the case, the prayers made in the miscellaneous applications of the assessees deserve to be accepted ?" Per Shri Chander Singh (Accountant Member) (Third Member) - These miscellaneous petitions by the assessees arise out of WTA Nos. 334 to 344/PN/ 1985 in the case of Shri Modu Timblo and WTA Nos. 345 to 356/ PN/ 1985 in the case of Smt. Sushila M. Timblo. In accordance with section 255(4) of the Income-tax Act, 1961, the following question has been referred to me as a Third Member for decision : "Whether, on the facts and in the circumstances of the case, the prayers made in the miscellaneous applications of the assessees deserve to be accepted ?" 2. As the identical issues have been referred in the cases mentioned above, a consolidated order, for the sake of convenience, is being passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief was granted in respect of other assessment years. Thereafter, the assessees preferred miscellaneous applications and prayed for, for the reason set out in the said applications, recalling of the order passed by the Tribunal. It would be useful to extract the relevant grounds on which the assessees had sought the recall of the order of the Tribunal : (1) The Tribunal has not considered the contention that the debt in question being not backed by any documentary evidence, the assessee had no legal remedies available to it which could be enforced and, therefore, the impact of the position on the market value of the asset should have been considered and was not considered by the Tribunal. It has been urged in the said miscellaneous petitions, no buyer would buy such an asset being a debt owed in these circumstances and the market-value was NIL. (2) The debt in question was barred by limitation and this fact should have been considered in valuing the debt. This has been disposed of by the Hon'ble Tribunal by a mere observation that no proof under the Portuguese law regarding limitation had been adduced. It was stated that if the Tribunal desired further evidence regarding lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would place all relevant material before the Tribunal at the time of hearing of the miscellaneous application. It was finally submitted that discounting of the debt from the assessment year 1975-76 itself was an admission by the Tribunal that there was restriction on remittance and it had observed that there was no proof of restriction on remittance for the earlier years was obviously an apparent mistake. 8. The Tribunal had given a finding in para 11 of its appellate order that the Gujarat High Court in the case of Sadiqali Samsuddin was distinguishable as explained by the departmental representative. The departmental representative distinguished the judgment by saying that it was to be taken as confined to the facts of that case where the question was about the concept of cash and prohibition for remittance and total restriction on utilisation was accepted as a fact. It was submitted that in view of the stay granted by the WTO under section 31(7) of the Wealth-tax Act, by passing a speaking order, the department had accepted the position that there was a prohibition on remittance and hence the very basis for distinguising the judgment of the Gujarat High Court in Sadiqali Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the assessee Shri K.R. Prasad, Advocate, strongly argued that the Hon'ble Bench had failed to take note of the factual position regarding the foreign debt owed to the assessee. The Hon'ble Bench ignored the fact that the foreign debt was not supported by any document as a result of which no legal action for recovery was possible. The learned Members of the Tribunal also failed to take note of the fact the foreign debt was frozen as it was evident from the correspondence between the assessee and the Government of India. In particular, he has drawn my attention to compilation No. II in which the copies of correspondence between the assessee and Government of India are placed. In his opinion, the Government of India admitted the factual position that the foreign debt in question was frozen in Portugal. The Hon'ble Members also did not take note of the fact that the said debt was time-barred as a result of which, the assessee had no legal remedy. Moreover, the Assessing Officer himself had applied the provisions of section 31(7) of the Act and was convinced that the said debt was frozen by Government of Portugal. He also drew my attention to the treaty between Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 989] 180 ITR 6093 (Bom.). 14. The learned counsel continued and said that under the provisions of the Income-tax Act, a mistake apparent from record can be rectified. The record Includes the whole of record before the Tribunal as well as other relevant records. Even the treaty between the Government of India and Portugal would be the record which was before the Tribunal at the time of hearing of miscellaneous applications. Even at the time of original appeal, the treaty was very much in existence and therefore, the Tribunal should have taken note of. Since the treaty constituted as a record, the non-consideration of It has resulted in an apparent mistake. In this regard, the learned counsel has placed reliance on a decision of the Hyderabad Bench of the Tribunal in the cases of D.S. Chenai and Indocean Engg. (P.) Ltd. 15. The learned counsel has also pointed out at the Hon'ble Bench was convinced with the foreign debt owed to the assessee was frozen. It is only on that basis that the Tribunal had allowed the discount at 20% from 1976-77 onwards. The learned counsel thus, concluded that there was an apparent mistake in the order of the Tribunal which should have been rectified. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntative pointed out that there was no evidence on record on which either the WTO or the CIT(A) or even the Tribunal could act. As a matter of fact, the Tribunal has specifically mentioned lack of evidence regarding the limitation. The assessee also did not make a request to the Tribunal to file any further evidence. The learned departmental representative further asserted that only a mistake apparent from record can be rectified. Failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on the record. The Tribunal, he argued, had no power to review its own orders. In the case of the assessee, there is no mistake apparent from record and what the assessee seeks is to review the order of the Tribunal. Since the review is not permissible, the miscellaneous applications of the assessee need not be entertained. For the various propositions, the learned departmental representative drew our attention to the following decisions 1. CIT v. Ramesh Electric Trading Co. [1993] 203 ITR 497 (Bom.); 2. Raj Kumar Jain v. Asstt. CIT [1994] 50 ITD 1 (All.) (TM); 3. Gayways Publicity (P.) Ltd. v. CIT [1995] 211 ITR 506 (Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on all the contentions raised by the assessee. I further admit that the Tribunal has no power to review. Its only power is one of rectification conferred by section 254(2). It is well settled proposition that an act of the Tribunal should not prejudice a party. In such a case, it would not be just to drive the party to a reference under section 256. It is the duty of the Tribunal to reopen an appeal if it finds that it has omitted to deal with an important ground or an important argument urged by the parties. 22. What is rectifiable under section 254(2) is a mistake which is apparent. What is a mistake apparent from the record has been dealt with by many Courts. For the purpose on hand, I may only refer to the decision of the Allahabad High Court in the case of S.B. Singar Singh Sons under the Excess Profits Tax Act, 1940, wherein it was held that the Tribunal has inherent power to rectify its orders, to correct wrong done to a party especially so when a particular ground raised has not been dealt with. Even though this decision was reversed by the Supreme Court but the reversal was on a totally different ground. The Courts over the years have recognised the inherent powers o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the paper book filed before the Tribunal. it was contended that the correspondence would show that the Government of India had accepted that the funds in Portugal were frozen. it was also submitted by the counsel that the stay granted under section 31(7) of the Act also proved the position regarding the freeze of the assets. The necessary pre-condition for acting under section 31(7) of the Act is that there must be a prohibition for a restriction on the remittances of money to India in respect of assets located in a country outside India. It is not disputed that evidence was on record to show by way of a speaking assessment order setting out the reasons under section 31(7) of the Act in respect of the aforesaid debts. From the appellate order, it is clear that it was never the case of the department that the treatment of the assessee not being in default under section 31(7) of the Act was improper. When it was an accepted position throughout until the stage of hearing that there was such prohibition/restriction it would be just and proper to hold that this issue was never in dispute. No doubt, there is an observation in para 8 of that order of the Tribunal which reads as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 72 on page 8 of the Paper Book II where the Dy. Secretary to the Government of India specifically stated that the assets in Portugal were frozen. Similarly, the letter dated 31-1-1973 addressed by the Under Secretary to the Government of India also refers to these assets as frozen assets in Portugal. Again in the letter dated 23-6-1971, Shri K.N. Rao, Officer of the Finance Ministry had stated, inter alia, "the goods will be allowed to be imported only from countries other than Portugal and South Africa". The only inference that can be drawn from these observations is that there was a bar/ restriction of trade and economic relations between India on the one hand and Portugal and South Africa on the other. The position in respect of South Africa was well known at that time. The position in respect of Portugal was identical with that of South Africa during the assessment years before me. No trade or bilateral transactions were allowed between these countries and India. Trade, repatriation etc. were taboo. There is nothing on record to show that the correspondence which has a bearing on the valuation of the asset in question contained in paper book 11 was considered by the Tribunal at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal and for this reason also, the order would have to be recalled. Thirdly, if the Tribunal has given a finding that there are restrictions on the repatriation, then also the order of the Tribunal reveals a mistake which requires a rectification, inasmuch as if there are restrictions, the value of the deposits could not be the face value and to this extent, the order of the Tribunal directly contrary to the decision of the Gujarat High Court in Sadiqali Samsuddin's case. It is pertinent to mention that in the case of Smt. Sushila M. Timblo [WT Appeal No. 345 (Pune) of 1975] for the assessment year 1969-70, there were similar mistakes committed by the Hon'ble Bench. 30. It has been specifically contended that in the absence of any documentary evidence to prove the existence of the assessee's debts any action for recovery of such debts through a legal process would have been futile especially having regard to the status of debts being in Portugal and, therefore, this was a very material factor in valuing the asset. Though there is a reference in the order on the miscellaneous petition to this fact even after a careful scrutiny I find that this aspect of the issue has not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Portugal. It may also be mentioned that a copy of Treaty was placed before the Bench during the hearing of miscellaneous petitions under reference. The perusal of the Treaty itself shows that in the preamble it speaks of Portugal recognising the full sovereignty of India over the territories of Goa, Daman and Diu. It obviously means that until that date the Portuguese Government did not recognise the sovereignty of India over the territories of Goa, Daman and Diu. Therefore, there was an enemy status between the two countries as Portugal until 1974 considered Goa, Daman and Diu as its own territory even though it was in occupation by India. Article I of the Treaty for the first time contains an acknowledgment by Portugal that the territories of Goa, Daman and Diu have become parts of India specifically recognises the sovereignty of India over these territories. This implies that until that date, no such recognition was there and therefore, the enemy status continued. Article III speaks of the contracting parties agreeing to settle through bilateral negotiations all questions including those concerning the property, assets or claims of citizens of their respective countries of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e restoration of the diplomatic and economic relationship between the two countries, the Tribunal could recognise that the debts have to be discounted for the purpose of valuation. It is difficult to understand how the position could have been any better in the earlier years when there was enemy status between the two countries. The position as regards the value of the assets situated in the enemy country could only have been worse than what was obtaining in 1975-76. This supports my conclusion that the order of the Tribunal in the miscellaneous petitions did suffer from apparent mistakes both as regards the inclusion of assets in question as well as its valuation. The relevant material has not been considered, the submissions made which have a vital role have not been dealt with and the impact of legislation and law on the issue of valuation have not been considered. 35. I have very carefully studied the judicial decisions brought to my notice by the learned Senior Departmental representative. In my considered view, the decisions relied upon by him do not advance the department's case. In my view, therefore, I find it a fit case for accepting the miscellaneous petitions for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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