1. These two appeals by the assessee raise identical issues against the order dt. 12th Jan., 2000, of learned CWT(A), New Delhi, as under : 1. On the facts and circumstances of the case, and in law, the decision of learned CWT(A) in confirming the jurisdiction under Section 17 of learned AO is ab initio improper and illegal inasmuch as the notice under Section 17 has been issued for assessment and not reassessment, and whereas the appellant has already been assessed under Section 16(1) for the relevant assessment year, 2. That the learned CWT(A) has not passed any order regarding 1st ground of appeal taken before CWT(A) which is being reproduced herebelow : 3. That, the learned AO has passed order under Section 16(5) whereas our counsel had appeared on dt. 5th Jan., 1998, which clearly proves that the order has been passed in a mechanical manner and without proper application of mind.
4. On the facts and in the circumstances of the case and in law, the following acts of the authorities below are grossly arbitrary, wholly erroneous and totally unjust, and must be quashed.
(a) In construing the unquoted equity shares of the Delhi Stock Exchange Ltd. in two parts, viz., (i) shares (ii) ticket and in attributing to them two separate distinctive values based on a perverse application of facts and interpretation of the statute.
(b) In ignoring the mandatory requirement of Clause 11 of Part C of Schedule III of the WT Act, 1957, for the valuation of unquoted equity shares of the Delhi Stock Exchange Association Ltd. and proceeding on imaginary, fanciful and preposterous grounds by omitting to note that the methodology ascribed paid no need to such superficial consideration.
(c) In capaciously ignoring the fact that the ticket as such was neither as an asset nor properly eligible to tax under the WT Act, 1957, and was expressly not taxable because of its not being a personal asset in view of the binding precedent of the Hon'ble Bombay High Court in the case of Vijay Bubna.
(d) In failing to appreciate and concede that the ticket value, even if any, was not taxable being an intangible, incorporeal right which did not constitute a property or an asset in terms of established legal principles.
(e) In failing to understand and abide by the principle that the ticket was no entity independent of the share and was neither separable nor divisable, and as such had no value separately and distinctly from the share whose integral part it was.
(f) That the AO failed to understand, appreciate and concede the attributes and qualities of the unquoted equity share of the Delhi Stock Exchange Association Ltd., and erroneously imputed to them such distinctive qualities and unique characteristics only with the aim of assigning two separate values to the share and the so-called separate right so as to exaggerate and boost its value on preposterous and perverse consideration.
(g) That the AO failed to appreciate and concede that the objectives of the Delhi Stock Exchange Ltd. were inherently charitable and as such no commercial value could be attributed to its shares, making them taxable in terms of the WT Act, 1957.
(h) That the AO in applying both Clause 11 and Clause 20 of Schedule III of the WT Act, 1957, simultaneously which provisions are otherwise mutually exclusively and wholly incompatible.
(i) That the AO be directed to complete the valuation of the shares entirely on the basis of Clause 11 of Schedule III of the WT Act, 1957.
(j) That the learned AO has further erred in law by charging interest under Section 17(B) from the due date, i.e., 31st Aug., 1991, whereas it should have been charged from the date of issue of notice under Section 17 of the Act." 2. Assessee's counsel contends that the perusal of reasons recorded by the AO reveals that action under Section 17 has been taken because the assessee did not file the WT return by including the value of ticket of Delhi Stock Exchange for asst. yrs. 1991-92 and 1992-93. The inclusion of value of this ticket in the total wealth of the members of the stock exchange has been upheld in appeal by the learned CIT(A), New Delhi, also. Therefore, having reason to believe that the wealth of the assessee which is much above the exemption limit for the above assessment years has escaped assessment, action has been taken. The learned Counsel contends that the reasons recorded by the AO have not taken into account, the return filed by the assessee, copies of acknowledgements are placed at pp. 7-9 along with the statement of net wealth where the assessee has disclosed membership, share with the stock exchange at nil value, and claimed the same as exempt. It was, therefore, contended that the initiation of reassessment proceedings by the AO is bad in law as there was no information in his possession that there is a failure or omission by the assessee to make return of wealth. It has further been considered that the AO has proceeded to take action merely on the basis of change of opinion and on the basis of such a change reopening of assessment cannot be upheld. The order passed in another case is not an intimation to give jurisdiction to reassess. Reliance has been placed on various legal authorities and written arguments thereto have been filed as under: Reassessment--Not on basis of mere change of opinion--Law same before and after amendment by Direct Tax Laws (Amendment) Act, 1987--IT Act, 1961.
(v) On the facts, the notices were bad as they were only on the basis of a change of opinion and the law that an assessment could not be reopened on a change of opinion was the same before and after amendment by the Direct Tax Laws (Amendment) Act, 1987, of Section 147, and (vi) as the notices were without jurisdiction, the assessee should not be relegated to the alternative remedy, the Department preferred appeals to the Supreme Court. The Supreme Court saw no reason to differ and dismissed the appeals.
Held, dismissing the appeal, that a perusal of the record in this case showed that there was no omission or failure on the part of the assessee to make a return under Section 139 as contemplated in Clause (a) of Section 147" : nor was there any information in the possession of the AO obtained by him subsequent to the assessment order. Whatever information was necessary was already available to the AO when the first assessment was made. The order passed by the AAC in another case is not "information" within the meaning of the section. Hence, neither Clause (a) nor Clause (b) of the section would apply in this case.
Reassessment on mere change of opinion of AO not a ground for reassessment--Amendment of Section 147 w.e.f. 1st April, 1989, has not altered position--Section 147, Circular No. 549, dt. 31st Oct., 1989, circulars binding on IT authorities under Section 119.
Interpretation of taxing statutes--Statute to be read as a whole before construing provision--Interpretation of provision upholding its constitutional validity.
It is well-settled principle of interpretation of statutes that the entire statute should be read as a whole and the same has to be considered thereafter chapter by chapter, and then section by section, and ultimately word by word.
It is not in dispute that the AO does not have any jurisdiction to review his own order. His jurisdiction is confined only to rectification of mistake as contained in Section 154 of the Act. The power of rectification of mistakes conferred upon the ITO is circumscribed by the provision of Section 154 of the Act. The said power can be exercised when the mistake is apparent. Even a mistake cannot be rectified where it may be a mere possible view or where the issues are debatable. The Tribunal has limited jurisdiction under Section 254(2) of the Act. It is well-settled principle of law that what cannot be done directly cannot be done indirectly: If the ITO does not possess the power of review, he cannot be permitted to achieve the said object of taking recourse to initiate a proceeding of reassessment. In a case of this nature the Revenue is not without remedy. Section 263 of the Act empowers the CIT to review an order which is prejudicial to the Revenue.
The scope and effect of Section 147 as substituted w.e.f. 1st April, 1989, and subsequently amended as also of Sections 148 to 152 have been elaborated in Circular No. 549. A perusal of Clause 7.2 of the said circular makes it clear that the amendments had been carried out only with a view to allay fears that the omission of the expression "reason to believe" from Section 147 would give arbitrary powers to the AO to reopen past assessments on a mere change of opinion. It is, therefore, evident that even according to the CBDT a mere change of opinion cannot form the basis for reopening a completed assessment.
A statute conferring an arbitrary power may be held to be ultra virus Article 14 of the Constitution of India. If two interpretations are possible, the interpretation which upholds constitutionality should be favoured. In the event it is held that by reason of Section 147 the ITO may exercise his jurisdiction for initiating a proceeding for reassessment only upon a mere change of opinion, the same may be held to be unconstitutional.
An order of assessment can be passed either in terms of Section 143(1) or 143(3); when a regular order of assessment is passed in terms of the 143(3), a presumption can be raised that such an order has been passed on application of mind. It is well known that a presumption can also be raised to the effect that in terms of Clause (e) of Section 144 of the Indian Evidence Act, 1872, judicial and official acts have been regularly performed. If it be held that an order which has been passed purportedly without application of mind would itself confer jurisdiction upon the AO to reopen the proceeding without anything further, the same would amount to giving a premium to an authority exercising quasi-judicial function to take benefit of its own wrong. Hence, it is clear that Section 147 of the Act does not postulate conferment of power upon the AO to initiate reassessment proceedings upon a mere change of opinion.Garden Silk Mills (P) Ltd v. Dy. CIT Reassessment--Condition precedent--Reason to believe that income-tax escaped assessment--Reason must be based on material--Change of opinion will not justify reassessment--Assessee allowed adjustment in valuation of his closing stock--Subsequent reassessment proceedings on ground that adjustment was erroneous--Reassessment proceedings were not valid.
Page 671, 'we are also of the opinion that howsoever wide the scope of taking action under Section 148 of the Act, it does not confer jurisdiction on change of opinion on the interpretation of a particular provision earlier adopted by the assessing authority. For coming to the conclusion whether there has been excessive loss or depreciation allowance or there has been underassessment or assessment at a lower rate or for applying other provisions of Expln. 2, it must be material and it should have nexus for holding such opinion contrary to what has been expressed earlier. The scope of Section 147 of the Act is not for reviewing its earlier order suo moto irrespective of there being any material to come to a different conclusion apart from just having second thoughts about the interferences drawn earlier.' Reassessment--Condition precedent--Reason to believe income has escaped assessment--Assessee-company manufacturing photo films and article placed under Schedule XI manufacturers of photo films not entitled to deduction under Section 80-I because item fell under Schedule XI--ITO reopening assessment and withdrawing deduction granted earlier--Between date of orders of assessment sought, to be reopened and date of forming opinion by the ITO nothing new happened--No change of law, no new material came on record and no information received--Mere fresh application of mind by same ITO to same set of facts--Amounted to mere change of opinion--Notices for reassessment invalid.Marudhar Hotels (P) Ltd. v. Dy. CIT Reassessment--Reason for believing income had escaped assessment--Change of opinion not sufficient cause for reassessment--Reassessment proceedings to change basis for calculation of depreciation--Not valid.
Held (i) : That a perusal of the reasons recorded by the AO itself showed that no failure on the part of the assessee had been attributed for the alleged escapement of assessment and, therefore, in the absence of any such failure on the part of the assessee under the proviso to Section 147 of the IT Act, 1961, the notice issued on 29th March, 1990, for reopening of the assessments for the assessment years prior to 1985-86 were clearly barred.
(ii) That so far as initiation of proceedings for reassessment for the asst. yr. 1985-86 by issuing notice dt. 29th July, 1990, was concerned, it could not be held to be barred by time. However, the only reason disclosed for reopening the assessment for the asst. yr.
1985-86 was to change the basis of computation of depreciation from the valuation at which the company had acquired the asset, viz., the building, to the written down valuation in the books of account of its predecessor firm. This was merely a change of opinion which was not permissible for assuming jurisdiction under Section 147. The notice for the asst. yr. 1985-86 was also liable to be quashed.
(7) (a) Purushottam Das Bangur v. ITO, (b) Rang Lal Bangur .
The ITO would be acting without jurisdiction if the reason for his belief that the conditions are satisfied does not exist or is not material, or relevant to the belief required by the section and the Court can always examine this aspect though the declaration or sufficiency of the reasons for the belief cannot be investigated by the Court. If there was no new material before the ITO unknown to him previously which could provide reasons for his belief under Section 147(b) when he issued the notice of reassessment, it would be a case of mere change of opinion which cannot be a ground for reopening the assessment.
Held that where expressly deduction under Section 80HHD was claimed and it was examined and granted by the assessing authority there was no omission or failure on the part of the assessee to disclose any material fact necessary for the assessment. At the time of submission of the original return, as per the requirements of the law, the assessee submitted certificates from the chartered accountant in the prescribed forms claiming such exemptions. Thus, the primary facts were before the AO when he made the assessment under Sub-section (3) of Section 143 and it was not open to him to invoke the provisions of Section 147 of the Act to reopen the assessments because he might have omitted to notice certain facts by oversight. For change of opinion the provisions of Section 147 of the Act cannot be put to service. The notices were liable to be quashed." 3. On the other hand, the learned Departmental Representative contends that the acknowledgements of returns for the two years were not before the AO. The assessee had contended that these returns were filed prior to taking action under Section 17. This is not a correct claim and no such returns came for consideration. If at all they were filed, the same might have been filed with an officer who did not have any jurisdiction on the case of the assessee. Such returns, therefore, cannot be taken as valid returns. The AO also, however, had a definite information that the assessee had not disclosed the value of right in the stock exchange and the same having been escaped for an assessment, initiation of action was valid. It is not a case of mere change of opinion as alleged by the assessee. The orders of the authorities below on this legal ground need no interference.
4. We have heard the parties with reference to material on record and precedents referred. The AO initiated penalty (reassessment) proceedings under Section 17 by recording reasons for both the years.
The assessee had not filed any return of income with the Asstt. CIT, Circle-7(4), New Delhi, who was holding jurisdiction on the assessee.
Copies of acknowledgements of two returns for asst. yrs. 1991-92 and 1992-93 placed on record by the assessee's counsel at paper book pp.
7-9 reveal that there are acknowledgements of receipts for both these returns dt. 31st March, 1993, by the Asstt. CIT, Circle 6(1), New Delhi. The assessee speaks that these returns were filed and assessed but no assessment order thereof has been brought on record before any of the authorities nor before the Tribunal even though specifically asked to produce the same. No material has been adduced by the assessee to show that any of such acknowledgements was placed before the AO at the time of initiation of action or at the time of assessment proceedings before him so as to enable him to verify the correctness of the claim. Even in the certificate appended to the paper book the assessee did not categorically state as to which of the documents were placed before the AO or the learned CIT(A) though required to do so as per Tribunal Rules. Merely a certificate stating that these documents are put before the lower authorities is not an indicative of the fact as to whether the acknowledgements on the basis of which the assessee is trying to build his case were in fact available with the AO. Asstt.
CIT, Circle-7(4), New Delhi, who held the right jurisdiction of the case. Under such circumstances, the only inference that has to be drawn is that no return has been filed by the assessee which was made as one of the basis for initiation of action under Section 17 of the Act by the AO and, thus, initiation of action on that count alone was enough to initiate proceedings under Section 17 against the assessee.
5. Assuming that the assessee had filed returns with the Asstt. CIT, Circle-6(1), New Delhi, the same are not shown to have been processed nor considered for assessment by that AO also. The AO, thus, had not realised the existence of such returns or contents thereof nor its implications were recognised by him and as such mere filing of return did not constitute information within the meaning of Section 1.7 of the WT Act, 1957. In the computation of net wealth enclosed, the assessee has claimed only membership share with Delhi Stock Exchange Ltd. below Rs. 5 lakhs and the same as exempt under WT Act, thereby taking the value at nil. This has been done without taking into account the value of right which was part of the asset for the purpose of wealth-tax. The existence of such information was realised by the AO after receipt of information from the learned CIT(A) in similar other cases of other stock brokers who were also having shares and right of trading in Delhi Stock Exchange. It is only after receipt of such information and application of mind by the AO a decision was taken to initiate proceedings under Section 17 of the Act as the assessee had not disclosed the same to the Department. He did not initiate action merely on the information of CIT(A). Mere filing of return also cannot be treated to be an order of assessment and such a view stands fortified by the jurisdictional High Court in the case of Mahanagar Telephones Nigam Ltd v. Chairman, CBDT , where it has elaborately dealt with the issue as to what constitutes information. According to the Hon'ble Court, information means the communication or reception of knowledge or intelligence. It includes knowledge obtained from investigation, study or instruction. "To inform" means to impart knowledge. The details available in the papers filed before the ITO do not by itself mere presence or availability become an item of information. It is transmitted into an item of information only if and when its existence is realised and its implications are recognised.
6. In this view of the matter filing of return alone that too with an officer who did not hold the correct jurisdiction on the assessee's case will not amount that any opinion had been formed on the basis of such a return filed by the assessee. Therefore, the question that action under Section 17 cannot be taken on the basis of a change of opinion may be a good argument but the same does not help the case of the assessee under the peculiar facts and circumstances of the case and as such the decisions of apex Court in CIT v. Foramer France, CIT v.Kalvinator of India Ltd. (supra) of the Hon'ble Delhi High Court, Garden Silk (P) Ltd. of the Gujarat High Court, Marudhar Hotels (P) Ltd. of the Rajasthan High Court, Purushottam Das Bangur and Anr. by the Rajasthan High Court and Mercury Travels Ltd. of the Hon'ble Calcutta High Court which have strongly been relied upon by the assessee's counsel for validity of action when there is a change of opinion do not advance the case of the assessee in the attendant facts and circumstances before us, though on legal principles, we are fully in agreement. In the present case, the decision taken by the learned CIT(A) in the case of several brokers where value of right was not disclosed had come as a material on record which was duly processed and the AO was satisfied that the assessee had not disclosed such a valuable right. Thus, new material had come on record which stood processed by the AO before taking action under Section 17 of the WT Act, 1957 and after application of mind, the AO having found that this value was not disclosed in the return, the same constituted information as also has been held by the jurisdictional High Court in Bawa Abhai Singh v. Dy. CIT (2002) 253 ITR 83 (Del). Thus, the reliance placed by the assessee on earlier decisions of jurisdictional High Court in the cases of Jindal Photo Films Ltd. (supra) as well as Tarson Tea Co.
(supra) of the apex Court reported in 236 ITR 477 also does not advance the case of the assessee as no assessment is found made earlier to this action. We, therefore, uphold the validity of action taken under Section 17 of the Act by the AO and do not find any infirmity in the conclusion arrived by the learned CIT(A) in rejecting the ground of the assessee, finding no force in such grounds before us, the same stand rejected.
7. On the aspect of merits, elaborate arguments were advanced by both the parties and have duly been considered in the light of Special Bench decision in the case of Jagan Nath Sayal v. Asstt. CIT (2000) 67 TTJ (Del)(SB) 1 : (2000) 72 ITD 1 (Del)(SB) as well as the Supreme Court decision in Stock Exchange, Ahmedabad v. Asstt. CIT and Bombay Tribunal decision in the case of Dy. CWT v. Ashwin C. Shah (2002) 76 TTJ (Mumbai) 823 : (2002) 254 ITR 90 (Mumbai)(AT) : (2002) 82 ITD 573 (Mumbai).
An identical issue has already been considered at length in the case of G.K. Iyer v. Asstt. CWT in WTA Nos. 23 & 24/Del/2001, dt. 11th June, 2004, where one of us had constituted the Bench with Hon'ble President of the Tribunal and taken decision vide paras 4 to 10 as under: "4. We have heard the arguments of both the sides. At the outset, we may point out that all the contentions raised by the learned Counsel of the appellant have been the same as raised before the Special Bench in Jagan Nath Sayal (supra). However, the learned Counsel has also relied on the three decisions which were rendered subsequent to the decision of Special Bench as under :Stock Exchange, Ahmedabad v. Asstt. CIT 5. In the Delhi Stock Exchange Association Ltd. (supra) the jurisdictional High Court has held that once the Department has upheld the plea of the appellant that it is entitled to the benefit of Section 11 then the said benefit has to be given for the whole year and not for part of the year. The Court held that the Act envisages only one assessment and not two, since it is the income of the previous year which is entitled to exemption and consequently, the same cannot be divided into two periods, i.e., one prior to alteration of the articles and the other after the alteration. We fail to understand how this decision advances the case of the appellant. Moreover, it is an established position that the company and its share holders are distinct assessees and their assessments have to be done independently of each other. If one is exempt it does not lead to automatic exemption to the other. Suffice to say that prior to Section 40 of the Finance Act, 1983, and later on apart from the specified asset there was no wealth-tax on, companies but still shares of those companies were liable to wealth-tax in the hands of the shareholders subject to exemption as provided under Section 5 of the WT Act.
6. The applicant has also relied on the decision of the Mumbai Tribunal in the case of Ashwin C. Shah (supra), where the Tribunal after perusal of the Bombay Stock Exchange Rules vis-a-vis Ahmedabad Stock Exchange has held that both are same. Consequently, following the decision of the Hon'ble Supreme Court in Stock Exchange of Ahmedabad (supra), it has held that the share and ticket of the exchange is a personal privilege and as such do not fall into the definition of the asset under Section 2(ea) of WT Act. The learned Authorised Representative has pointed out that the rules and regulations of the BSE and DSE are same and as such no wealth-tax should be levied on the share of DSE. In this regard we may point out that the learned Counsel of the assessee has not produced any comparative chart of the rules of the two stock exchanges to bring out the similarity in the rules and regulations of the two exchanges so as to advance her case. However, careful reading of the said judgment would reveal that in the aforementioned case at p. 103, para 'E', the learned Counsel of the assessee had pointed out before the Mumbai Tribunal that : 'Delhi Stock Exchange has its own memorandum of articles and association; contents of memorandum and articles of association were completely different from the rules framed by BSE and ASE, therefore, the decision of the rendered by the Special Bench cannot be applied to cases arising under the rules of the BSE". On the same page in para 'F' the Bench held on perusal of the memorandum of articles of association of the DSE, we find the contention of Mr.
Patil as correct. The membership of the DSE is open to individuals who are members of the company. It would thus appear that one has to be a shareholder of the DSE Ltd. in order to become a member eligible to do business. There is no rule similar to Rule 5 of the BSE which in terms declares that the membership of the BSE is a personal privilege.' 'Our view is that the order of the Special Bench would apply wherever the rules of the concerned stock exchange are similar to those of the Delhi Stock Exchange Association Ltd.'s 8. We may further point out that in the Special Bench (supra) at p.
12, in first para, 'the learned Counsel of the appellant has pointed out that with respect to right of nomination the rules of ASE are different than DSE and as such the decision of the Gujarat High Court in 231 ITR 906 (sic) is not applicable to them. The same argument was reiterated by another counsel in p. 8 at p. 23 before the Special Bench. Therefore, for all these reasons it is clearly established that Mumbai Tribunal decision in Ashwin C. Shah (supra) is not applicable to the case of the appellant.
9. On the applicability of apex Court decision in Ahmedabad Stock Exchange (supra), it is imperative to point out that it is an established rule of interpretation that before applying the ratio of a particular case, it is necessary to match the facts of the said case to the case in hand. For this proposition, reference can be had to the decision of the Constitutional Bench of the apex Court in Padmasundra Rao (Decd.) v. State of Tamil Nadu , 'Courts should not place reliance on the decision without discussing as to how the factual situation fits in the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in legislative enactment and it is to be remembered that judicial utterances are made in the setting of facts of a particular case, said Lord Morrin Herrington in British Railways Board (1972) 2 WLR 537 (HL). Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases." 10. The Stock Exchange, Ahmedabad case (supra) was a case of deceased member in the context of garnishee order. As per the rules of the said exchange, on the death of a member the right of nomination vests in the legal representative or heirs or the persons mentioned in Appendix C, subject to the condition that the aforesaid persons shall have paid and satisfied in full the dues of the exchange and liabilities relating to contracts. Once the right of nomination vests in the exchange then in such situation the consideration received on nomination shall be applied in the manner laid down in the rules. As per the rules the entire consideration is to be applied first to the dues of exchange and thereafter towards contracts, and surplus in the sole discretion of the governing body.
No claim of the legal heirs survives. On 7th Feb., 1994, Mr. Rajesh Shah died. On 12th Feb., 1994, the legal heirs informed the exchange that they would not be able to meet the dues of the deceased.
Consequently, the right of nomination vested absolutely in the exchange. A provisional attachment order was issued by the Department on 15th Feb., 1994, in respect of the stock exchange card of Mr. Shah. In such circumstances when the right of nomination of the legal heirs had already ceased and vested in the exchange, garnishee notice could not be exercised as the legal heirs had no right in it. It was under these circumstances the Hon'ble Court held that the membership right was not the property of the deceased and as such could not be attached. It would have been a different situation had the legal heirs not given up their right of nomination or the deceased himself would have been alive. Therefore, in our humble opinion, the aforesaid decision does not advance the case of the appellant. Moreover, we have already discussed above that the rules/ regulations and bye-laws of the ASE and DSE are different. In such circumstances also, it is beyond our comprehension to apply the decision which was rendered in the context of different bye-laws.
Needless to point out that the petting and facts in which that case was rendered were totally in contrast with the case of the appellant before us. Here, the case is of a member and the question whether the right of trading in the exchange is a property and is exigible to wealth-tax is totally at variance with the rights of the legal heirs of the deceased in the ticket after the said right had vested in the exchange. It has also to be noted that while rendering the decision in Ahmedabad Stock Exchange (supra) the Hon'ble Court has considered two other earlier judgments of the apex Court in Official Assignee of Bombay v. KRP Shroff AIR 1932 PC 186 : 3 Comp. Cas & Vinay Bubna v. Stock Exchange 97 Comp. Cas 874 (SC). Incidentally both these decisions were in the context of BSE. When DSE bye-laws are different, this decision of the apex Court cannot be applied to the appellant case. We, therefore uphold that composite value of the membership and this ticket of Delhi Stock Exchange is an asset for the purpose of WT Act, which the appellant himself had also disclosed in his return for both the years." 8. For identical reasons and similar facts and circumstances except the admission of its value in these returns by the assessee, we uphold the same conclusion that the value of membership for ticket of Delhi Stock Exchange is an asset for the purpose of WT Act, liable to be included in the wealth of the assessee. As regards the issue of valuation the assessee contends that he has given calculations at Rs. 3,71,610 and Rs. 2,85,510 in these two years but the same remained unsubstantiated in the absence any of the balance sheet or any other reliable material.
Contrary to this, the learned CIT(A) is found to have taken the value based on certain other decisions like in the case of M.M. Rode where large number of such card holders have availed of KVSS accepting the value of Rs. 25 lakhs and Rs. 40 lakhs for the asst. yrs. 1991-92 and 1992-93. He also took into consideration the fact that the Delhi Stock Exchange has fixed official rate of Rs. 25 lakhs for transfer of ticket during the financial year 1993-94 when there was slump in the sensex and accorded took fair market value of the asset at Rs. 15 lakhs for asst. yr. 1991-92 and Rs. 20 lakhs for asst. yr. 1992-93. We do not find any infirmity in the values so adopted by the AO. The assessee himself estimated the value of shares in which value of such rights is also embedded, The assessee could at best be given benefit of value of such shares taken at Rs. 3,71,610 and Rs. 2,85,510 in respect of each year under consideration. The AO, therefore, shall consider claim of exemption so made in the light of relevant material and take decision in accordance with law after providing reasonable and effective opportunity of being heard to the assessee.
9. There is no address in ground No. 3(j) of the assessee. The AO shall however take the decision in accordance with law after hearing the assessee.
10. In the result, the assessee's appeals are allowed partly for both the years for statistical purposes only.