H. E. H. Nizams Jewellery Trust v Assistant Commissioner of Wealth Tax and Others

Andhra Pradesh High Court

21 November 1996

W.P. No. 8612 of 1996

The Judgment was delivered by T. N. C. RANGARAJAN J.

T. N. C. RANGARAJAN J.

These two writ petitions have been filed by the secretary of H. E. H. the Nizam’s Jewellery Trust challenging the validity of the notices issued u/s. 17 of the Wealth-tax Act, 1957, in respect of the assessment years 1984-85 to 1989-90 H. E. H. the Nizam’s Jewellery Trust was declared on March 29, 1951, in respect of 107 items of Jewellery for the benefit of various beneficiaries mentioned in the deed. According to this trust, 24 items were directly given to the beneficiaries and out of the balance of 83 items, 40 items were to be disposed of either in India or abroad within three years after the death of the Nizam and his son, while the balance of 43 items were not to be sold except in grave financial emergency. Subsequently, on January 27, 1952, a supplementary trust was declared in respect of 90 more items of Jewellery. In both the trust deeds, a representative of the Government was a trustee and at all material times the Additional Finance Secretary of the Union of India was a trustee. The Nizam died on July 24, 1967, and his son also died on October 9, 1970. Consequently, in July, 1972, the trust made an offer to the Government of India to sell the collection of 173 items of Jewellery to the Government, after handing over heirloom of 24 items to the beneficiaries directly. This was considered by two expert committees who inspected the Jewellery and classified the same. In the meanwhile, theAntiquities and Art Treasures Act, 1972, came into force. Sixty-five items of jewellery were declared to be not antiquities and 23 as antiquities and in respect of one item, Jacab diamond, no decision was taken. The trustees were told that they were free to sell the rest. But one of the beneficiaries filed an Original Petition No. 141 of 1978 in the City Civil Court, Hyderabad, for removal of the trustees and for an interim injunction against the sale. The matter went up to the Supreme Court along with two other appeals by a prospective buyer and on August 31, 1979, the Supreme Court directed that the jewellery be sold in public auction by the Finance Secretary to act as the officer of the court for the same. On September 20, 1979, when the auction was about to be held in the court room of the Supreme Court, the Union of India sought stay, pending a decision to acquire these jewels as art treasures in the national interest. The Antiquities and Art Treasures Rules were amended with a view to declare, identified pieces of jewellery as art treasures. This was challenged in W. P. No. 1429 of 1979 and the matter was remitted for consideration by the Government. On October 12, 1984, a notification for compulsory acquisition of seven items of jewellery was made in respect of which the trustees filed their objections and later an application to the Supreme Court for setting aside that order. In the meanwhile, another committee was set up by the Government with Sri Sharada Prasad as chairman which recommended the acquisition of the entire collection as of historic interest. Thereupon negotiations were conducted and the parties entered into a compromise dated February 14, 1989, for a package deal, by which the dispute was to be referred to arbitration. The Supreme Court recorded the compromise on April 25, 1989, and referred the matter to arbitration. In the meanwhile, an application was made by the Government for a declaration that the jewellery was part of regalia and belonged to the Union of India but this was dismissed as withdrawn on April 22, 1991. The two arbitrators differed on the question whether the right of the Government to acquire the property had lapsed in terms of the compromise agreement and the matter was referred to an umpire. Before the umpire also, the Government again took the objection that the jewellery belonged to the Government but it was rejected. On the question of fair price to be paid for the jewellery in terms of the agreement, the trustees claimed that the jewellery had been valued by Sotheby’s at 162 million dollars which if taken as a reserve price, the fair price may be four times and could work out to 648 million dollars equivalent to Rs. 1, 192.32 crores. The claim also referred to valuation done by Christie’s giving a valuation of 135 million dollars. The Union of India submitted that the foreign market for the jewellery had to be excluded in fixing the price that there were numerous restrictions on the sale of the jewellery and the only purchaser available being the Union of India, the valuation made for the purpose of wealth-tax should be adopted as the fair market price. It was pointed out that the same jewellery was assessed by the Wealth-tax Officer on the basis of the valuation made under section 16A of the Wealth-tax Act and since that valuation had been accepted by both the parties, the fair price should not exceed the value adopted for wealth-tax purposes. The valuer, Sri Chowlera, filed an affidavit before the arbitrator and he was also cross-examined on behalf of the trust. The umpire, Sri Justice A. N. Sen, gave an award dated July 27, 1991, holding that the valuation made for wealth-tax purposes cannot determine the fair and just value for the purpose of acquisition, that valuation made by Sotheby’s and Christie’s was with reference to an international auction and the valuation made by Vithaldas was based on fancy prices. Therefore, he himself determined the value of the 173 items of jewellery at Rs. 225, 37, 33, 959. The Union of India challenged this before the Supreme Court and by the decision reported in the case of Union of India v. Prince Muffakam Jah, 1995 AIR(SC) 498; [1994] 4 Scale 113, the Supreme Court held that the award was binding on the Government, but taking into account an arithmetical error, the amount that was to be paid as the just and fair price for 173 items of jewellery as on December 31, 1994, would be Rs. 180, 37, 33, 959. The Government was given the liberty to choose certain items alone if necessary and if all the items were acquired, a sum of Rs. 1, 50, 000 was also to be paid as costs. It is stated that ultimately the jewellery has been taken over by the Government at that value. The Government’s claim to title was also rejected by a separate order in [1994] 4 Scale 113 observing that it was based on gross misrepresentationWhile the above proceedings were going on, wealth-tax assessments had also been made. It is the case of the petitioner that all the facts relating to the proceedings mentioned above, were disclosed to the Wealth-tax Officer while filing the return for each assessment year. In 1979, one Mr. Mahenderji Mehta was appointed as a Valuation Officer for the valuation of the jewellery in respect of the assessment years 1957-58 to 1979-80. The valuation made by him started from Rs. 1.87 crores for valuation date March 31, 1957, to Rs. 29.73 crores for the valuation date March 31, 1979. Subsequently, for the assessment years 1980-81 and 1981 82, valuation dates (March 31, 1980, and March 31, 1981), the matter was referred to Mr. Chowlera under section 16A and he gave his report on April 13, 1987, assessing the value of Rs. 32.43 crores. According to the petitioner, returns were filed for the subsequent years on the basis of the valuation made by the Department for the earlier years. For the assessment years 1982-83 to 1985-86, a fresh valuation was made by Mr. Chowlera on March 13, 1986, taking the value at Rs. 33.30 crores for 1982-83 and Rs. 34.18 crores for 1983-84 and Rs. 35.18 crores for 1984-85 and 1985-86. Similarly, the valuation was made for the three subsequent assessment years 1986-87-Rs. 35.24 crores, 1987-88-39.89 crores, 1988-89-Rs. 41.72 B crores. For all these assessment years 1984-85 to 1988-89 with which we are now concerned, assessments were made under section 16A(6) in conformity with the valuation reports

By the impugned notices, the Wealth-tax Officer proposed to revise those valuations on the ground that net wealth chargeable to tax has escaped assessment by reason of underassessment. The reasons for the belief that wealth had escaped assessment were recorded as follows

“A reference was made to the determination of the fair value of the jewellery at Rs. 171 crores in the proceedings before the Supreme Court and the admission of the valuer, Mr. Chowlera before the arbitrator that his valuation made was on the low side and that he had also committed certain errors with reference to the valuation. It was stated that such valuation suffers from several infirmities resulting in underassessment of the wealth considering the fact that the trustees had returned the value at Rs. 3.60 crores though according to them the value was near the amount of Rs. 1, 000 crores, and, therefore, it was clear that the trustees had not disclosed fully and truly all material facts pertaining to the value of the jewellery necessary for the assessment of the net wealth in the cases of the beneficiaries of the jewellery Trust.”

These petitions challenge the impugned notices on the ground that such a belief that there was underassessment could not be entertained by the Wealth-tax Officer from the material on record, that the petitioners have disclosed all the relevant information and material particulars and that the question of non-disclosure of any material particulars becomes irrelevant, where the assessment is made under section 16A and not on the basis of the return. Learned counsel for the petitioners submitted that any deficiency in the enquiry before making the assessment, cannot be the basis for reopening the assessment and the value of the property cannot be worked out backwards on the basis of the subsequent valuation. He pointed out that even according to the valuer who had fully participated in the arbitration proceedings, the value of the jewellery was taken at a lesser figure even after the arbitration award, as in his report dated August 1, 1995, he has taken the value for 1989-90–Rs. 56, 06 crores. It was further submitted that the entire question of valuation was the subject of an appeal and concluded by the order of the Appellate Tribunal and cannot be the subject of escaped assessment. It was also pointed out that when the jewellery itself was tendered for examination/valuation, there was no question of disclosure of any further facts as to its valuation. It was also submitted that the notices are barred by limitation. It was submitted that in these circumstances the impugned notices were wholly without jurisdiction and should be quashedOn the other hand, in the common counter-affidavit filed on behalf of the Revenue, it is stated that the admission of the valuer in the arbitration proceedings indicates that he did not have real expertise, as he had not seen an Alexandrite gem in his life. It is also stated that the petitioners knew that the jewellery was worth more than the value shown and yet chose to show a very low value. It is further stated that it was only at the hearing of the appeal before the Appellate Tribunal that the Revenue realised from an article in India Today that the intrinsic worth of the jewellery was many times more than what was declared and it is stated that an investigation was made thereafter and the Revenue came to know that the jewellery was being acquired by the Government at Rs. 180 crores. Learned counsel for the Revenue submitted that a perusal of the proceedings pending before the Supreme Court would show that up to 1991 there was no challenge to title and up to 1989 there was no bar on the sale of the jewellery. He submitted that the compromise entered into in 1989 was significant and this compromise was not disclosed and the valuation reports obtained from Sotheby and Christie were not disclosed and hence it was a case of omission to disclose the material particulars. He further submitted that even though for the assessment year 1990-91 onwards those facts are mentioned, the vast difference between the claim for over Rs. 1, 000 crores before the arbitrator and the returned value of less than Rs. 10 crores in the wealth-tax proceedings indicated that the assessee knew that the jewellery was valuable but had deliberately withheld the information. He also submitted that even though the assessment was made under section 16A(6), the Wealth-tax Officer was entitled to reopen the same when he had reason to believe that the wealth was underassessed. He argued that when s. 17 provided for a reassessment of the escaped wealth, such a provision had to be applied to all assessments because excluding the assessments made under section 16A(6) from the scope of s. 17 will lead to discriminationAccording to the provisions of the Wealth-tax Act, when the assets are held by the trustee, a return has to be filed by the trustee but the assessments have to be made in the like manner and to the same extent as it will be leviable upon the beneficiaries. In a connected case which went up to the Supreme Court, it was held in CWT v. Trustees of H. E. H. Nizam’s Family (Remainder Wealth) Trust 1977 Indlaw SC 229 as follows

“The consequences of the provisions in s. 21(1) that the trustee is assessable ‘ in the like manner and to the same extent ‘ as the beneficiary are threefold. In the first place, there would have to be as many assessments on the trustee as there are beneficiaries with determinate and known shares, though for the sake of convenience, there may be only one assessment order specifying separately the tax due in respect of the wealth of each beneficiary. Second, the assessment of the trustee would have to be made in the same status as that of the beneficiary whose interest is sought to be taxed in the hands of the trustee. And lastly, the amount of tax payable by the trustee would be the same as that payable by each beneficiary in respect of his beneficial interest, if he were assessed directly

The Wealth-tax Officer has to determine who are the beneficiaries in respect of the remainder on the relevant valuation date and whether their shares are indeterminate or unknown. It is not at all relevant whether the beneficiaries may change in subsequent years before the date of distribution, depending upon contingencies which may come to pass in future. So long as it is possible to say on the relevant valuation date that the beneficiaries are known and their shares are determinate, the possibility that the beneficiaries may change by reason of subsequent events such as birth or death would not take the case out of the ambit of sub-s. (1) of s. 21. The position has to be seen on the relevant valuation date as if the preceding life interest had come to an end on that date and if, on that hypothesis, it is possible to determine who precisely would be the beneficiaries and on what determinate shares, sub-s. (1) of s. 21 must apply and it would be a matter of no consequence that the number of beneficiaries may vary in the future either by reason of some beneficiaries ceasing to exist or some new beneficiaries coming into being.”

Thereafter, sub-section (1A) was introduced for the purposes of assessing the value of the assets which fall short of the aggregate value of the interest of the beneficiaries. That is why in the present case, apart from making separate assessments in respect of about 180 beneficiaries, assessments have also been made under sub-section (1A) of s. 21 in the hands of the trust

A brief reference to legislative history gives us the perspective. Prior to April 1, 1989, a return had to be filed by the assessee u/s. 14 and the Wealth-tax Officer could assess the net wealth on the basis of the return, if he found it to be correct and complete. Otherwise, he could call for evidence in support of the return and after an enquiry, complete the assessment u/s. 16(3). The charge is on the net wealth, which is defined u/s. 2(m) as the aggregate value of all the assets in excess of the aggregate value of all the debts owed by the assessee on the valuation date. S. 7 provided at that time, that the value of any asset shall be estimated to be the price which in the opinion of the Assessing Officer it would fetch if sold in the open market on the valuation date.

Thus, the estimate of the value of the asset was one step in the assessment proceedings. With respect to this step, the assessee was required to make an estimate in the return which was substituted by the estimate made by the Wealth-tax Officer which could then be taken up on appeal for adjudication. Sub-sections (6), (7) and (8) of s. 24 provided for a reference by the Appellate Tribunal for an arbitration by a valuer at the option of the assessee which was to be final. There were also departmental instructions for assistance by a valuer to the Wealth-tax Officer when he made his estimates. There was a general feeling that the assessees were undervaluing the assets. Therefore, by the Finance Act, 1976, Explanation 4 was added to s. 18 which provides for penalty for concealment. This Explanation reads as follows

“Explanation 4. — Where the value of any asset returned by any person is less than seventy per cent. of the value of such asset as determined in an assessment u/s. 16 or section 17, such person shall be deemed to have furnished inaccurate particulars of such asset within the meaning of cl. (c) of this sub-section, unless he proves that the value of the asset as returned by him is the correct value

The meaning of this Explanation has been clarified by a Circular and Press Note dated May 27, 1968, by the Central Board of Direct Taxes itself to the effect that as long as some material is available to the assessee, such as a valuation report given by a registered valuer, the substitution by a value more than 30 per cent. by the Wealth-tax Officer would not make it a matter of concealment in spite of this Explanation. Simultaneously, there was the other side of the picture, namely, the Wealth-tax Officers were making wild and high-pitched estimates, one of the reasons being that they did not have the expertise for valuation of assets, and secondly, they would be motivated by an understandable bias in favour of the Revenue. This aspect was considered by the Direct Taxes Enquiry Committee. Based on the report of the Committee, section 16A was introduced to remove the matter of estimating the value of the assets from the purview of the Wealth-tax Officer to a Valuation Officer. The memorandum explained this amendment which was introduced by the Taxation Laws (Amendment) Act, 1972, as follows”

The valuation cells so established were poorly manned and their jurisdiction was far and wide and it was becoming increasingly difficult to cope with all the cases which required proper valuation and the completion of the assessments in respect of big and revenue yielding cases were being unduly delayedAs pointed out above, the function of the cell was advisory only and the report was technically not binding even on the Wealth-tax Officer and if there were errors or omissions even he could differ from the report. The assessee had no opportunity in placing before the officer of the cell his view-point or any document or evidence in support of the value declared by him. In order to remove these difficulties, the Taxation Laws (Amendment) Act, 1972, has introduced the procedure for valuation by the Valuation Officers appointed under the Act with powers to call the assessee, call for documents, records and accounts and also vests him with powers vested in the civil court for the purpose of discovery, inspection, of enforcing attendance, etc., u/s. 37 and powers of entry and inspection of land and building under the newly inserted section 38A

The main object of the new procedure is minimising tax evasion on account of undervaluation of properties. It simultaneously provides the assessee with an opportunity to prove his case regarding the value declared before the Valuation Officer as well as appeal against the order of the Valuation Officer before the Appellate Assistant Commissioner and later to the Tribunal. The purpose of the new administrative structure and procedure for valuation is to strengthen the valuation machinery. With the introduction of valuation of properties by the statutorily appointed Valuation Officer at the initial stage of assessment, the old provisions regarding the reference to the valuers for arbitration at the Tribunal stage has been omitted being redundant and superfluous. With the introduction of the new procedure and appointment of Valuation Officers who are experts in their respective fields, the job of valuation is entrusted to the experts instead of being left to the Wealth-tax Officer who is a layman. The procedure outlined creates wheels within wheels. The work of the assessment is thereby divided into two distinct limbs. The valuation of the assets is to be done by the Valuation Officer in cases and circumstances outlined in the section. The Wealth-tax Officer has to complete the assessment adopting the value of such asset as determined by the Valuation Officer. The valuation report is to be defended by the Valuation Officer and not by the Wealth-tax Officer in the appellate proceedings.

“(Verma, page 1/494-495 (1978 edition)) (See also Central Board of Direct Taxes Circular No. 96, dated November 25, 1972)Form O-8 given in the rules lays down the particulars required to be given by the assessee for assessing the jewellery. Those particulars are only description, weight or special features. In view of the introduction of section 16A, sub-s. (3) was introduced in s. 7 to the effect that notwithstanding anything contained in sub-s. (1) in section 7, where the valuation of any asset is referred by the Assessing Officer to the Valuation Officer under section 16A, the value of such asset will be estimated to be the price which, in the opinion of the Valuation Officer, it would fetch if sold in the open market on the valuation date. The Direct Tax Laws (Amendment) Act, 1989, amended s. 7 with effect from April 1, 1989. It provided in sub-s. (1) that the value of any asset shall be the value as determined in the manner laid down in Schedule III. Consequently, sub-s. (3) was omitted. However, Schedule III now provides that in respect of the jewellery the value shall be estimated to be the price which it would fetch if sold in the open market on the valuation date. According to rule 18, in that Schedule the return has to be supported by a report of a registered valuer where the value exceeds rupees five lakhs and if the Assessing Officer was of the opinion that the value declared is less than the market value, he may refer the matter to the Valuation Officer under section 16A, and the value of such jewellery shall be the fair market value as estimated by the Valuation Officer. Rule 19 provides for adjustment of the value once estimated by the Valuation Officer for four subsequent assessment years without fresh valuation. Form O-8A requires only the following information”

Form 0-8A

(1) Serial No

(2) Description of item

(3) Gross weight(4) Net weight of precious metal

(5) Description and weight of precious or semi-precious stones

(6) Value of each precious or semi-precious stone and decided value of such stones

(7) Total value of the item of jewellery.

“Therefore, in spite of these amendments, the position remains the same as before. As explained by the Supreme Court in Bharat Hari Singhania v. CWT 1993 Indlaw ORI 100 “

Ordinarily, it is for the Wealth-tax Officer to value the assets of an assessee, whatever be their nature. S. 7(1) says so. Sub-s. (3) of section 7, however, says that ‘ [notwithstanding anything contained in sub-section (1), where the valuation of any asset is referred by the Wealth-tax Officer to the Valuation Officer under section 16A, the value of such asset shall be estimated to be the price which, in the opinion of the Valuation Officer, it would fetch if sold in the open market on the valuation date …] ‘ Sub-s. (1) of section 16A prescribes the situations in which the Wealth-tax Officer may refer the valuation of any asset to the Valuation Officer. Sub-ss. (2) to (4) prescribe the procedure to be followed by the Valuation Officer on such reference. In short, he has to give notice to the assessee, receive the evidence produced by him, make appropriate enquiry and then send his report under sub-s. (5) to the Wealth-tax Officer. Sub-s. (6) says that ‘ on receipt of the order under sub-s. (3) or sub-s. (5) from the Valuation Officer, the Wealth-tax Officer shall, so far as the valuation of the asset in question is concerned, proceed to complete the assessment in conformity with the estimate of the Valuation Officer.’ In other words, the order or the valuation made by the Valuation Officer, as the case may be, is binding on the Wealth- tax Officer.

“S. 17 as it stands today, amended with effect from April 1, 1989, being the law relevant to the date on which the action is proposed to be taken, is as follows”

S. 17. Wealth escaping assessment. — (1) If the Assessing Officer has reason to believe that the net wealth chargeable to tax in respect of which any person is assessable under this Act has escaped assessment for any assessment year (whether by reason of under-assessment or assessment at too low a rate or otherwise), he may, subject to the other provisions of this section and section 17A, serve on such person a notice requiring him to furnish within such period, not being less than thirty days, as may be specified in the notice, a return in the prescribed form and verified in the prescribed manner setting forth the net wealth in respect of which such person is assessable as on the valuation date mentioned in the notice, along with such other particulars as may be required by the notice, and may proceed to assess or reassess such net wealth and also any other net wealth chargeable to tax in respect of which such person is assessable, which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section for the assessment year concerned (hereafter in this section referred to as the relevant assessment year), and the provisions of this Act shall, so far as may be, apply as if the return were a return required to be furnished under section 14

Provided that where an assessment under sub-s. (3) of s. 16 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any net wealth chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return u/s. 14 or s. 15 or in response to a notice issued under sub-s. (4) of s. 16 or this section or to disclose fully and truly all material facts ‘ necessary for his assessment for that assessment yearProvided further that the Assessing Officer shall, before issuing any notice under this sub-section, record his reasons for doing so.

“This section enables the Wealth-tax Officer to make a reassessment if the wealth was underassessed and the proviso states that unless the underassessment was by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment, such reassessment cannot be made after the expiry of four years from the end of the relevant assessment year. The action proposed to be taken by the issue of the impugned notices are, therefore, challenged for want of jurisdiction on three points”

1. The matter of valuation of an asset being a matter of opinion, no reassessment can be made by reason of changing that opinion what ever be the provocation for the same

2. The matter of valuation of an asset being within the jurisdiction of the Valuation Officer, the Assessing Officer has no jurisdiction to reassess the same

3. A matter of valuation of an asset being an opinion, it is not a matter of a material fact and there being no failure on the part of the assessee to disclose any material fact, any action taken u/s. 17 is barred by limitation under the proviso thereto

The statement that the matter of valuation of an asset is a matter of estimate and consequently the opinion of the valuer, admits of no dispute. As we have seen, s. 7 itself stated originally that the value of an asset shall be estimated to be the price which in the opinion of the Assessing Officer it would fetch if sold in the open market on the valuation date. Therefore, the value determined by the Wealth-tax Officer, is in fact, an opinion. Similarly, the value estimated by any registered valuer or a Valuation Officer would again be an opinion. Not the least an estimate made by the assessee himself even without any expert advice would still be an opinion. Though it is a price which a willing buyer will pay to a willing seller, it has to be estimated in a hypothetical market, particularly when there are restrictions on such transactions. Any determination of the value will certainly vary from case to case and any precise mathematical calculation may not be possible.

“Valuation is an art, not an exact science. Mathematical certainty is not demanded, nor indeed is it possible”

said Viscount Simon in the case of Gold Coast Selection Trust Ltd. v. Humphrey (Inspector of Taxes) [1948] A.C. 459 (HL). A notional value is contemplated and many imponderables are involved requiring application of different methods and approaches. This is perhaps the reason why even in Form Nos. O-8 and O-8A prescribed under the rules and Schedule III for jewellery, there is no column relating to the value. No doubt the value is given by the assessee in the return and is often supported by a valuer’s report. But it cannot be said that any other valuation report obtained by the assessee, is a material fact required to be intimated to the Wealth-tax Officer. It is quite possible that an assessee may obtain several valuation reports for different purposes but such valuation reports still remain only opinions of various experts. Though they may be relevant for any person to come to his own opinion about the valuation of the asset, they do not constitute a primary fact which is required to be disclosed. Particularly in the case of jewellery, when the jewellery itself is produced for inspection and valuation, any other valuation, either by the assessee or any other qualified valuer would be just another opinion but not a primary fact and the omission to disclose the fact that the assessee obtained any other opinion, would not amount to failure to disclose fully and truly a primary fact. Consequently, the fact that the assessee was able to obtain two different valuation reports from Sotheby’s and Christie’s is of no consequence when the jewellery was presented to the Valuation Officer of the Department for his own valuation. It is only with reference to Explanation 4 to s. 18 that the assessee’s own valuation has to be supported by a valuer’s report. In the present context, it is not in dispute that for each assessment year the assessee took as the basis the valuation of the Department’s Valuation Officer for the earlier year. Further, according to a Circular of the Central Board of Direct Taxes No. 646 (see 1993 (200) ITR 228 ), dated March 15, 1993, as well as rule 19 of Schedule III the value of jewellery assessed in one year holds good for four successive assessment years. Therefore, in view of the clarification given by the Central Board of Direct Taxes in the Press Note dated May 27, 1968, there was no concealment of any particulars by the assessee inasmuch as the valuation shown in the return was bona fide and was based upon the Department’s own valuation for the earlier years. It follows that there was no omission to disclose correct particularsAs observed earlier, it is only because the manner of valuation of assets led to unnecessary friction that section 16A was introduced. A reading of that section shows that the entire procedure of valuation after enquiry, which was earlier done by the Wealth-tax Officer, was transferred to the exclusive jurisdiction of the Valuation Officer. He is appointed by the Government on the basis of his qualifications. He has been given the power under section 16A(3) to accept the value shown by the assessee which earlier the Assessing Officer was doing u/s. 16(1). Similarly, he has been given power under sub-s. (4) to make a preliminary enquiry and call for the objections of the assessee and under sub-s. (5) to hear such evidence as the assessee may produce or as the Valuation Officer may require and to estimate the value of the asset after taking into account all relevant material which he has gathered. This is analogous to sub-ss. (3) and (4) of s. 16. In other words, a part of the assessment which was the valuation of the asset, which was being done by the Assessing Officer, was transferred to the exclusive jurisdiction of the Valuation Officer, because under sub-s. (6) the assessment has to be completed in conformity with the valuation of the Valuation Officer. It may be noted that if he has made any mistake then the Valuation Officer alone has the power to rectify the mistake as can be seen by s. 35(1)(aaa). A consequence of this pattern of assessment is that litigation in respect of valuation of an asset is intentionally restrained on the part of the Department, for, an appeal lies against such valuation only at the instance of the assessee and the appellate authorities have to decide the matter only after hearing the Valuation Officer. The purpose of this legislation appears to be to maintain a ceiling on the valuation of the asset by the Department reserving only the right of the assessee to seek adjustments if he feels aggrieved by the valuation. This is similar to the valuation of land acquired under the Land Acquisition Act where the value determined by the Land Acquisition Officer is the minimum below which the Government cannot go, as it is binding on the Government though the claimant can have the matter referred to court seeking a higher value. No doubt, prior to the introduction of section 16A, when the Wealth-tax Officer was himself making assessments by estimating the value of the asset, he could perhaps have invoked s. 17 on the ground that the net wealth with reference to the value of an asset was underassessed by reason of his own failure to advert to any relevant material in the enquiry in the original assessment. But, even such an action would have been severely restricted because it would be a substitution of an earlier opinion with reference to the value of an asset by another opinion though well informed. The Supreme Court has held in the case of CIT v. Simon Carves Ltd. 1976 Indlaw SC 168, that it is not open to the Assessing Officer to substitute his opinion for that of the officer making the original assessment when the method of computation adopted at the time of the original assessment was permissible in law and that the fact that the adoption of a different method would have resulted in a higher yield of tax, would not justify the reopening of the assessment. If the Wealth-tax Officer could not have done such a reassessment prior to the introduction of section 16A, all the more reason why he cannot do it after section 16A(6) was enacted. The valuation made by the Valuation Officer is binding on him and that part of the assessment which was in conformity with the Valuation Officer’s estimate, cannot be revised by the Wealth-tax Officer. When we find that the jurisdiction of the Wealth-tax Officer in respect of the valuation of an asset was specifically transferred to the Valuation Officer including the matter of rectification of mistake and no right to revise such an estimate is reserved under section 17, it would follow that the jurisdiction of the Wealth-tax Officer u/s. 17 is curtailed to that extent. A harmonious reading of section 16A and s. 17 leads us to hold that the matter of valuation of an asset is within the exclusive jurisdiction of the Valuation Officer subject only to appeal by the assessee, and, therefore, cannot be the subject of reassessment u/s. 17. The contention of the Revenue that this will be discriminatory as underassessments in assessments made u/s. 16 will be open to revision, while those made under section 16A will not, has only to be stated to be rejected. Obviously, it amounts to a reasonable classification between valuation by the Wealth-tax Officer without expertise and valuation by the Valuation Officer whose decision is clearly made final by section 16A(6). In the present case, the valuation was actually the subject of an appeal. The assessee had accepted the estimate made by the Valuation Officer and asked only for certain discount because of various depressing factors which the Commissioner of Wealth-tax had accepted and it was upheld by the Appellate Tribunal. The Tribunal also exempted seven items of jewellery declared as art treasures exempt u/s. 5(1)(xii) of the Act. Once the matter of valuation has merged with the appellate order, there is no further justification for the Wealth-tax Officer to attempt a reassessment of the sameLearned counsel for the Revenue submitted that the Wealth-tax Officer had reason to believe that the net wealth has been underassessed because the fact that the assessee was claiming a very large amount as compensation and had also obtained other valuers’ reports in support of that claim, was not disclosed and, secondly, the Valuation Officer had admitted during the arbitration proceedings that his own valuation was vitiated by certain infirmities. According to learned counsel, failure to keep the Valuation Officer informed about the exorbitant claim made in the arbitration proceedings amounted to failure to disclose truly and fully all material facts. We are unable to accept these contentions because a reading of the entire proceedings shows that the Valuation Officer was a party to the entire proceedings in the arbitration. There was a co-ordinated effort by the Government of India in the arbitration proceedings to project the Valuation Officer as the most credible valuer. There was correspondence between the Ministry of Cultural Affairs and the Finance Ministry with reference to the deputation of the Valuation Officer for giving

evidence before the arbitrators. On December 29, 1989, itself the Director-General of National Museum wrote to the Member, Central Board of Direct Taxes, that the Valuation Officer had been summoned before the Income-tax Appellate Tribunal with reference to an appeal relating to the valuation of the jewellery and informed him that hearing of the appeal should be deferred, so that the trustees may not get away with a comparatively lower valuation in the wealth-tax assessment and extract the maximum price from the Government. Surprisingly, after all the appeals were concluded on February 8, 1990, by the Appellate Tribunal, the Department’s representative produced an issue of “India Today” dated February 15, 1990, to the members of the Tribunal which happened to have an article captioned “The Nizam’s Jewels Treasure Hunt–Waiting to Encash a Legacy” and asked leave to rely on the same. But the Tribunal rightly rejected this plea made after the conclusion of the case before it. In the counter-affidavit filed before us the Assistant Commissioner of Wealth-tax states as follows

“For the first time, the Revenue realised at the time of hearing of the case from a coverage made in the leading fortnightly India Today that the intrinsic worth of the jewellery was many times more than what was declared and assessed

This statement clearly suppressed the fact that there was already a letter dated December 29, 1989, on the subject. Apart from this, in every return filed by the trustees, the pendency of the litigation before the Supreme Court and the arbitrators have been mentioned. Learned counsel submitted that for the assessment year 1989-90 the compromise dated February 14, 1989, was not disclosed. But the fact is that this compromise was recorded by the Supreme Court only on April 25, 1989, after the valuation date relevant to the assessment year 1989-90. Moreover, when the valuer gave evidence before the arbitrator, he was cross-examined on behalf of the trustees and he stated as follows”

This valuation was done for the purpose of wealth-tax and I have submitted my proposed valuation report also and invited objections or errors whatever it was from the assessee. They have never submitted any specific objection or document to the same jewellery about which all these questions are being asked, and I have been told that I have just to bring down the value all these errors are being made by me.

“Since this answer has been given in the cross-examination by the assessee, it appears to suggest that the Department did not want a higher value to be given so that the Government may be saved from paying more in case the jewellery was acquired. It must be remembered that the case with reference to the acquisition of the jewellery had been pending ever since 1979 and the Additional Secretary to the Ministry of Finance was himself a trustee. The Valuation Officer has also admitted that he was consistently associated with the Ministry of Finance in assessing the jewellery, and, therefore, he was co-opted as a member of the Valuation Committee constituted in 1990. In the circumstances, we are unable to accept the contention of the Revenue that any information about the claim of the petitioner for a large amount in arbitration proceedings was unknown to the Assessing Officer, even if it was known to the Department, particularly when the same Valuation Officer had given evidence before the arbitrator and had also valued the jewellery in the wealth-tax assessment. Furthermore, by a letter dated August 5, 1991, the Central Board of Direct Taxes Director wrote the following letter”

Dear Shri

Sub : Arbitration proceedings in the case of Nizam Jewellery Trust and Nizam Supplemental Trust

Please find enclosed herewith a copy of the award given by Justice A. N. Sen (Rtd.), Umpire in the Nizam Jewellery arbitration proceedings. This award was given on July 27, 1991, at Calcutta. He has fixed the value of 173 items of jewellery comprised in the two Nizam’s Trust at Rs. 225.37 crores

The award given by Justice A. N. Sen discusses at length the valuation of the Departmental Valuer, Sri Jayant Chowlera which was adopted by the Wealth-tax Officer after certain modifications. Since the order of the umpire has commented upon certain infirmities and under valuation of jewellery, the award may be scrutinised and suitable action as necessary may be taken urgently under intimation to the Board

With regards

Yours sincerely

(Sd.) K. Vasudevan

Encl. : As above

Shri R. Ganeshan

Chief Commissioner of Income-tax, Hyderabad

Copy to Sh. S. Govindarajan, Commissioner of Income-tax, Andhra Pradesh-I, Hyderabad, for necessary action.

“This suggests that the belief of the Wealth-tax Officer was not his own but one induced by the Government

Learned counsel for the Revenue stressed the fact that the very wide difference between the valuations made by the Valuation Officer and the claim made by the petitioners in the arbitration proceedings would indicate that there was underassessment of the valuation of the jewellery. We find that there were several reasons for this wide variation and it is not suggested that there was anything mala fide in the matter. Firstly, there is a vital difference between the valuation for the purpose of an annual levy of tax and the valuation for the purpose of acquisition of the property. In the words of Justice Dixon in the case of Commissioner of Succession Duties v. Executor Trustee and Agency Co. of South Australia 74 CLR 358 )”

I should like, however, to add for myself that there is some difference of purpose in valuing property for revenue cases and in compensation cases. In the second, the purpose is to ensure that the person to be compensated is given a full money equivalent of his loss, while in the first it is to ascertain what money value is plainly contained in the asset so as to afford a proper measure of liability to tax. While this difference cannot change the test of value, it is not without effect upon a court’s attitude in the application of the test. In a case of compensation, doubts are resolved in favour of a more liberal estimate, in a revenue case, of a more conservative estimate

We find that the same approach was taken by the learned umpire in the arbitration proceedings where it was stated that

“The valuation made by Chowlera on behalf of the Union of India was on the basis of the value of these items of jewellery for wealth-tax purposes. Mr. Chowlera himself has admitted that his valuation which was accepted by the parties for wealth-tax purposes was only for wealth-tax purposes and was, therefore on the low side. In course of his evidence, he has also admitted that there are errors in the valuation made by him and as the valuation was for wealth-tax purposes he had also not considered a particular item to be real Alexandrite but an imitation one and if it were real Alexandrite the value would be much more as real Alexandrite is very rare and valuable. It appears that the Union of India itself has considered the valuation made by Mr. Chowlera as rather low and has itself added to the said valuation 20 per cent. more on account of aesthetic value of items of jewellery and 20 per cent. more on account of escalation in price. The addition of 20 per cent. for escalation in price appears to be arbitrary. There is a huge quantity of gold in many items of jewellery. The hike in the price of gold is indeed huge. The escalation in price should further be considered after taking into consideration the increased valuation on account of aesthetic value. The valuation made for wealth-tax purposes cannot, therefore, determine the fair and just value of these items of jewellery.”

This indicates that what was determined in the arbitration proceedings was the fair price that should be paid by the Government for acquisition of the jewellery as on December 31, 1994. The fact that the petitioner received a sum of Rs. 180 crores as on that date could never be a primary fact for disclosure for valuation of jewellery on the valuation dates March 31, 1984, to March 31, 1989, which were long prior to that event. What the Government was acquiring was the jewellery free from all encumbrances. On the other hand, as on the earlier date of valuation the Valuation Officer had to estimate the value on a hypothetical market subject to various restrictions such as, sale within India, objections of the beneficiaries, dispute as to title by the Government, threat of acquisition by the Government and lack of possession inasmuch as it was under attachment and in the custody of the Government, etc. In a hypothetical market with all these depressing factors, no willing buyer would have paid what the Government ultimately paid for acquiring the jewellery free from all encumbrances. The valuation reports obtained by the petitioner was with reference to the foreign markets with the added prestige of a sale of jewellery belonging to a former ruler, whereas the valuation for wealth-tax purposes was mostly confined to intrinsic worth with reference to the weight of the gold and gems and the market value thereof. A significant fact is that the same valuer has valued the same jewellery even after 1990 at figures less than that paid by the Government and curiously for the year 1994-95 he has taken a figure of Rs. 236 crores which is even more than what it fetched. The more startling fact is that in spite of the valuer having admitted in the cross-examination before the arbitrator in April, 1991, that he had committed certain mistakes, he was continued to be employed as a valuer in respect of the same jewellery for subsequent valuation dates. This indicates that he was willing to give evidence before the arbitrators to suit the interests of the Government in order to continue his employment. His evidence, cannot, therefore, be relied upon by the Revenue to contend that he had failed to make an appropriate enquiry under section 16A(5), and, therefore, his report has to be disregarded for making any reassessment. As we have seen from the scheme of the Act, the Valuation Officer’s report is binding on the Assessing Officer and if he could not avoid it at the time of the original assessment itself on the ground that the enquiry contemplated under sub-section was vitiated by the Valuation Officer not taking into account all relevant materials or not gathering all relevant materials, certainly he could not make a reassessment on that groundWe have already seen that the matter of valuation is a matter of opinion and not a primary fact. The Bombay High Court has held in the case of Tulsidas Kilachand v. D. R. Chawla 1979 Indlaw MUM 3723

“That a subsequent valuer’s report giving a higher value is not relevant information enabling the Wealth-tax Officer to reopen an assessment based on a valuer’s report because it would still amount to a change of opinion, especially when the Wealth-tax Officer could have easily ascertained the correctness of the statement made in the return while making the assessment.”

The Supreme Court refused to grant the leave to appeal against that judgment 1981 Indlaw GUJ 107 ). It can, therefore, be taken as well settled that an estimate of a value of an asset is not a primary fact. We have also seen that the forms prescribed do not require the assessee to mention anything about the value except to support the value returned with the valuer’s report. The assessee in the present case relied entirely on the Department’s valuation for the value returned. We find that there was a full and complete disclosure of all the primary facts by production of the jewellery itself for inspection and evaluation, as well as by giving all relevant facts relating to the pending litigation before the Supreme Court.

Furthermore, in spite of the petitioners giving all such information, the return filed was not accepted. The valuation was made by the Valuation Officer under section 16A(5) independently and the assessment was made on that basis. It is, therefore, impossible for the Revenue to assert that there was any underassessment by reason of the failure of the assessee to disclose truly and fully all material particulars. When the assessment itself was made independent of any material furnished by the assessee, the Revenue cannot contend that there was any underassessment based on the belief that the valuation made in the assessments was low compared to the claim made by the assessee in the arbitration proceedings only by reason of the failure of the assessee to give any particulars. The proviso to s. 17 states that in such circumstances a reassessment can be initiated only within four years from the date of the assessment order. Since that period of limitation has admittedly expired in respect of all the five assessment years 1984-85 to 1989-90, the impugned notices are also barred by limitation. The Supreme Court has held in the case of Calcutta Discount Co. Ltd. v. ITO 1960 Indlaw SC 132 that

“The question whether the Income-tax Officer had reason to believe that underassessment had occurred by reason of non-disclosure of material facts was not a mere question of limitation only but was a question of jurisdiction which could be investigated u/art. 226 of the Constitution of India

The Supreme Court has also observed in Parashuram Pottery Works Co. Ltd. v. ITC 1972 Indlaw ALL 46, 10”

It has been said that the taxes are the price that we pay for civilization. If so, it is essential that those who are entrusted with the task of calculating and realising that price should familiarise themselves with the relevant provisions and become well-versed with the law on the subject. Any remissness on their part can only be at the cost of the national exchequer and must necessarily result in loss of revenue. At the same time, we have to bear in mind that the policy of law is that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must in other spheres of human activity. So far as the income-tax assessment orders are concerned, they cannot be reopened on the score of income escaping assessment u/s. 147 of the Act of 1961 after the expiry of four years from the end of the assessment year unless there be omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment. ”

We have already found that the Act itself had been amended to limit the litigation in respect of valuation, and, therefore, we are of the opinion that the Revenue would do well to cease and desist from reopening the matter of valuation of jewellery. Writ Petition No. 8612 of 1996 relates to 34 notices and Writ Petition No. 16431 of 1996 relates to 41 notices issued to the trustees in the representative capacity to reopen assessments made on the beneficiaries mentioned therein. Since all the assessments were made only on the basis of valuation made under section 16A and for the assessment year 1989-90 though no reference was made under section 16A, the earlier years’ valuation prevailed because of the Departmental circular as well as rule 19 of Schedule III, such valuation was outside the scope of s. 17 and the Wealth-tax Officer has no jurisdiction to revalue the same u/s. 17. The impugned notices are, therefore, quashed and the writ petitions allowed. No costsAfter the judgment is pronounced, an oral application is made by learned counsel for the Revenue seeking leave to appeal to the Supreme Court. The case does not involve any substantial question as to the interpretation of the Constitution nor does it raise any question of law of general importance which need to be decided by the Supreme Court. Leave is, therefore, refused