TMI Blog2004 (5) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... ice to ground No. 1, on facts and circumstances prevailing in the case and as per provisions of law it be held that order passed by the Assessing Officer under the designation of Asstt. CIT Inv. Cir. 3(2), Pune, is an order passed without resuming jurisdiction under the relevant provisions of the Act and the order so passed is ab initio void. The order passed by the Assessing Officer be held as null and void. 3. Without prejudice to ground Nos. 1 and 2, on facts and circumstances prevailing in the case and as per provisions of law, it be held that the value of share considered by the appellant at Rs. 194.85 is the proper value and is in accordance with the provisions of law. The value adopted by the Assessing Officer at Rs. 209.33 is argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 35 of the W.T. Act, 1957. It was submitted by Shri R.G. Nahan the learned A.R. of the assessee that the order under section 35 of the Wealth-tax Act, 1957, dated 25-9-1995 was signed by the Assessing Officer under the designation of Assistant Commissioner of Income-tax, Investigation Circle 3(2), Pune. He, therefore, contended that this order was ab initio void. 6. We have heard the rival submissions and have perused the orders of the authorities below. We find that the Taxation Laws Amendment Act, 1975 had inserted a new section 42C in the Wealth-tax Act, 1957 with effect from 1-10-1975. The provisions of section 42C are as under: "42C: No return of wealth, assessment, notice, summons or other proceedings furnished or made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant for carrying out the impugned rectification and the order has been signed in the capacity of Income-tax authority and not as wealth-tax authority. It has, therefore, been urged that on both these counts, it should be held that the rectification order passed by the Assessing Officer is ab initio void and without jurisdiction. These claims are found to be incorrect. Verification of record shows that notice under section 35 dated 11-9-1995 has been served on 12-9-1995, since there has been no response to this notice, the Assessing Officer has presumed that the assessee had nothing to say in the matter and has passed the rectification order. Therefore, the claim of having passed the order without giving opportunity is unjustified and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue and the reasons for her conclusions are given in paras 4 and 5 of the order of the CWT(A) which are reproduced below: "4. As regards Ground No. 3 in which the Assessing Officer's action in adopting the value of the equity shares at Rs. 209.33 per share instead of Rs. 194.85 per share adopted by the appellant, it is explained by the appellant's representative that the return of wealth for assessment year 1992-93 was filed by the assessee on 31-10-1992. The balance sheet of the company as on 31-3-1992 had been finalized and audited on 27-11-1991 whereas the balance sheet as on 31-3-1992 was finalized and audited on 15-12-1992. On the date on which the return was filed, the latest balance sheet drawn up was of 31-3-1991 and accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of both, the balance sheet drawn on a date immediately after the valuation date. This rule has been explained by the Supreme Court in Bharat Hari Singhania v. CWT 207 ITR 1. Reading the decision of the Supreme Court, it is seen that the explanation regarding definition of 'balance sheet' would have a meaning that if the valuation date followed by the assessee and the balance sheet of the company coincide, then irrespective of when the balance sheet is finalized (as the dates for finalization under the Companies Act are subsequent to the dates of filing of return), the relevant balance sheet as on the corresponding valuation date has to be adopted. In the above-mentioned circumstances, the Assessing Officer clearly erred in determining the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valuation date of the assessee and the date with reference to which the balance-sheet of the company is drawn do not coincide, it cannot be said that rule 1D is not mandatory or that it need not be followed. The break-up method contained in rule 1D lakes the balance-sheet of the company as the basis for working the rule. That rule cannot be worked in the absence of the balance-sheet. But there may be cases where the date of the balance-sheet and the valuation date of the assessee do not coincide. It is to meet such a situation that Explanation I is provided in rule 1D. The Explanation says that where the date on which the balance-sheet is drawn up does not coincide with the valuation date of the assessee, "the balance-sheet drawn up on a d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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