D.K. Seth, J.
1. An application for interim order in terms of prayer (f) of the petition has since been asked for in connection with this appeal. A preliminary objection has since been raised by Mr. Mallick that this writ petition has become infructuous in view of the omission of Rule 2 of the Wealth-tax Rules which been challenged in this writ petition as ultra vires, invalid and inoperative. In elaborating his submission, he contended that the appellant had prayed for a declaration that Rule 2 is inapplicable to the case of the appellant and ultra vires in view of Section 4(1)(b) of the Wealth-tax Act, 1957. On this ground, a prayer is made in the writ petition for cancelling, withdrawing, recalling and rescinding the said Rule 2 and the notices issued to the appellant under Rule 2 which were sought to be quashed. According to Mr. Mallick, as soon as Rule 2 is omitted, the challenge to the vires of Rule 2 remains no more germane to the issue.
2. Dr. Pal, learned counsel appearing for the appellant, on the other hand, contends that he has no quarrel with the first part of Rule 2. According to him, it will appear from paragraphs 27 and 28 of the writ petition that the challenge was thrown only to the latter part of Rule 2 and not to the first part. He contended further that the first part of Rule 2 confers a right that had already accrued to his client. This accrued right cannot be taken away by reason of omission of Rule 2. He also contended that Schedule III has imposed new liability and tends to take away the right accrued under Rule 2. Therefore, a part of the statute contained substantive law creating right and liability while another part is procedural. If it is so, in that event, omission of this rule will not take away the right and liability in view of Section 6 of the General Clauses Act. He had cited many decisions on this account. He also cited many decisions on the question that a right has accrued to him under Rule 2. On this ground, he had pointed out that the writ petition has not become infructuous.
3. We have heard the respective learned counsel and gone through the decisions cited. Dr. Pal had, in fact, elaborated his submission during two days on various aspects and addressed the court on the merits of the case. The moot point he had advanced is that Rule 2 was not purely procedural, neither Schedule III is a procedural law and, therefore, omission of Rule 2 will not deprive the petitioner of his rights and absolve the liabilities and hence the writ petition requires determination on the merits and cannot be dismissed as infructuous.
4. This question has to be determined on the basis of the averments made and the prayers sought for in the writ petition. Paragraphs 27 and 28 as aforesaid read thus :
'27. Under the partnership law and partnership agreement net assets or net wealth of a firm, that is assets minus liabilities, is determined only once that is after the dissolution of the firm or on retirement or death of a partner where the partnership agreement so provides. During the subsistence of the partnership, under the partnership law, the net wealth of a firm could not be determined and is not required to be valued. During the subsistence of the partnership a partner's interest in the firm does not mean and include his future right or interest to participate in the net assets of the firm on dissolution. Therefore, Rule 2 of the said Rules in so far as it requires determination of the net wealth of the firm, that is assets minus liabilities is applicable only in a case where a firm has been dissolved. This is further evident from the fact that the said rule requires allocation of the net wealth so determined among the partners of the firm in accordance with the dissolution clause or the partnership agreement or the partnership law. Therefore, your petitioner states, that Rule 2 of the said Rules applies only in a case where on the relevant valuation date the partnership firm has been dissolved. The said Rule 2 therefore does not apply to a case of subsisting partnership on the valuation date.
28. In the circumstances aforesaid your petitioner states that Rule 2 of the said Rules does not provide for a manner of valuation of a partner's interest in the firm during the subsistence of the partnership . . . The said Rule 2, therefore, does not provide for the determination of a partner's interest in the firm during the subsistence of the partnership and so long as the assessee continues to remain as a partner in the firm and the firm in question is not ripe for liquidation or has not been dissolved on the relevant valuation date.' The prayers that have been made are quoted below :
'(a) A declaration that Rule 2 of the said Rules is inapplicable in the case of valuation of a partner's interest in the firm during the subsistence of the partnership under Section 4(1)(b) of the said Act and is ultra vires, invalid and inoperative.
(b) A writ and/or order and/or direction of and/or in the nature of certio-rari commanding the respondents and each of them to transmit and certify records of the case to this court in order that Rule 2 of the said Rules and the said notices dated August 3, 1987, and August 7, 1987, for the assessment years 1983-84, 1984-85 and 1985-86 under the said Act may be quashed and set aside and conscionable justice may be rendered by this court.
(c) A writ and/or order and/or direction of and/or in the nature of mandamus commanding the respondents and each of them and their servants and agents to forthwith cancel, withdraw, recall and rescind the Said Rule 2 of the said Rules and the said notices dated August 3, 1987, and August 7, 1987, for the assessment years 1983-84, 1984-85 and 1985-86 and all proceedings, notices and orders relating thereto and thereunder and to forbear from proceeding any further with or giving any effect to or taking any steps whatsoever in pursuance of the same and to act in accordance with the law.'
5. It appears from the averments made and the reliefs sought for that the petitioner has asked for a declaration that Rule 2 is inapplicable in the case of valuation of the partner's interest in the firm during the subsistence of the partnership under Section 4(1)(b) of the said Act and is ultra vires and that the said rule should be cancelled, withdrawn, recalled or rescinded. At the same time, it is prayed that the notices issued pursuant to Rule 2 should be quashed as well as rescinded, withdrawn, cancelled.
6. Now, once the petitioner claims that Rule 2 is inapplicable in respect of determination of valuation of the partner's interest during the subsistence of the partnership, he cannot claim any right under the other part of the rule that he is entitled to certain rights under the said rule which is to be maintained. Once a rule is omitted and if it is procedural in nature, in that event, its omission will not be germane to the issue and shall in no way affect the right or liability of the parties since no one has any right to procedure. Admittedly, the substantive right flows from the statute, namely, under Section 4(1)(b) or under Section 7 of the Wealth-tax Act, respectively, under which the valuation is to be made. The procedure for valuation was prescribed in Rule 2 in respect of partnership firms, which has since been omitted and substituted by Schedule III. These are, admittedly, manners in which the valuation is to be made. These are procedural in nature and have been so held in the decision rendered in Juggilal Kamlapat Bankers v. WTO : [1984]145ITR485(SC) . In CWT v. Bhanwar Lal Gupta , the Rajasthan High Court had taken a view that the valuation to be made under Schedule III of the Wealth-tax Act, 1957, is procedural in nature. However, this decision was sought to be distinguished that this relates to valuation of immovable property, which has no manner of application in respect of valuation of a partnership firm.
7. In CWT v. Sharvan Kumar Swamp and Sons : 1995ECR425(SC) , it was held that Rule 1BB of the Wealth-tax Rules, 1957, is procedural one partaking of the character of a rule of evidence.
8. Rule 2, as it stood, is a manner in which valuation is to be arrived at. The determination of the valuation is to be made under Section 4(1)(b) or under Section 7, as the case may be. This might confer a substantive right and liability. But how this valuation is to be determined is a matter of procedure, which was prescribed in Rule 2, since omitted and now replaced by Schedule III. Having gone through Rule 2 and Schedule III, Rule 16, we are of the view that it is in the nature of evidence through which the valuation is to be determined. The first part or the second part of Rule 2 cannot make the distinction as sought to be made by Dr. Pal. It relates to a procedure. Whether this procedure was contravening Section 4(1)(b) is no more necessary to go into when the said rule stands omitted. It is stated on instruction by Mr. Mallick at the Bar that the Department will not proceed on the basis of Rule 2, it will proceed on the basis of Schedule III.
9. Therefore, on the basis of notice, the Department cannot proceed on the basis of Rule 2 since omitted. Then again, as soon it is held that Schedule III is a procedural one, in that event, on the introduction of Schedule III, all pending matters are to be governed by Schedule III. There is no scope for the Department to proceed on the basis of Rule 2 after Schedule III had come into force in respect of matters, which are pending adjudication. Therefore, relief in the form of quashing of the notice appears to have already been achieved. If Dr. Pal has any grievance in respect of Schedule III, the same would give rise to a fresh cause of action. If the petitioner is so advised, it is open to him to challenge the said Schedule III.
10. Section 6 of the General Clauses Act applies to repeal, not to omission, and that too of a Central Act or regulation and not of a rule. Section 6 of the General Clauses Act is to be applied having regard to the definition of. 'Central Act', 'enactment', 'regulation' and 'rule' as defined in Section 3(7), 3(19), 3(50) and 3(51), respectively, of the said Act. Giving a meaning to a term different from the definition is not permissible. When reference is made to a term defined in the statute, the term has to be understood to bear the meaning defined in the statute.
11. In Kolhapur Canesugar Works Ltd. v. Union of India, : 2000(119)ELT257(SC) , the apex court had held (page 819) :
'32. The decision of the Constitution Bench is directly on the question of applicability of Section 6 of the General Clauses Act in a case where a rule is deleted or omitted by a notification and the question was answered in the negative. The Constitution Bench said that 'Section 6 only applies to repeals and not to omissions, and applies when the repeal is of a Central Act or regulation and not of a rule', (page 656 of the Supreme Court Report).
33. When the Legislature by clear and unambiguous language has extended the provision of Section 6 to cases of repeal of a 'Central Act' or 'Regulation', it is not possible to apply the provision to a case of repeal of a 'Rule'. The position will not be different even if the rule has been framed by virtue of the power vested under an enactment; it remains a 'rule' and takes its colour from the definition of the term in the Act (General Clauses Act)...'
12. Admittedly, here Rule 2 is neither a Central Act nor a Regulation as contemplated under Section 6 of the General Clauses Act and as such the omission thereof will not attract the application of Section 6 of the General Clauses Act.
13. Dr. Pal had relied on unamended Section 7 and had pointed out that it had created some liability with which Rule 2 is in contradiction. Section 7(1) also stood amended. But that is not under challenge. By reason of Section 7(1), as it stood prior to the amendment, it cannot be concluded that such liability could be determined under Rule 2. The manner prescribed even under the said process can partake of the determination under Schedule III. If there is any contradiction having regard to Schedule III, which has now been made applicable, the same would give rise to a different cause of action but the same cannot be determined here in this case and Dr. Pal also has not made out such a case here.
14. In the circumstances, it is not necessary to address ourselves on all the points that were raised by Dr. Pal and the decisions cited by him are not relevant for the present purpose. Having regard to the present question as discussed above, we find that the reliefs claimed can no more be availed of or, in other words, it is already achieved by reason of omission of Rule 2 and as such the petitioner cannot press this petition any further which has since become infructuous by reason of omission of Rule 2 and insertion of Schedule III.
15. In the circumstances, we are not inclined to grant the interim order as prayed for.
16. After all these discussions, we do not find any reason to keep this appeal pending since nothing remains to be decided thereon. We, therefore, hereby treat the appeal as on day's list and dismiss the same.
17. The operation of this order shall remain stayed for a period of three weeks.
18. The parties shall act on xeroxed signed copy of this dictated order on the usual undertaking.
R.N. Sinha, J.
19. I agree.