1 . The appeals are by the department and the cross-objections by the assessee. There is a delay in the filing of the cross-objections. The assessee has filed an affidavit explaining the delay. The similar points covered by these appeals had come up before the appellate authorities in the earlier years also on departmental appeals. Since the assessee had not filed cross-objections at that time, it is averred that the Bench of the Tribunal indicated its inability for the assessee to be given any relief even if he was entitled to it without any cross-objections being filed. The cross-objections for the years under appeal were filed immediately after the decision of the Tribunal. The learned counsel for the department has strongly objected to the condonation of the delay. After hearing the parties, we admit the cross-objections.
2. The only point in dispute in these appeals and the cross-objections relates to the valuation of a property known as 'Lentin Court'. For the assessment years under appeal, the assessee had returned the value of this property at Rs. 3,74,000. The WTO, however, fixed the value of the property at Rs. 22,00,000 for the assessment year 1977-78 and Rs. 25,00,000 for the assessment year 1978-79. On appeal, the Commissioner (Appeals) reduced the value of the property to Rs. 16,42,000 for each of these two years.
3. The property under question had a chequered history. The assessee is an individual. In 1934, the trustees of the Bombay Port Trust leased out a piece of land, plot No. 26, measuring 1,641 sq. yards on a 99 years' lease to one Phirozeshow Cawasji Lentin and his wife. These people constructed the building on the premises named 'Lentin Court' in the same year. On 29-10-1935, the trustees of the Bombay Port Trust and Mr. and Mrs. Phirozeshow Cawasji Lentin demised the said property to one Rao Saheb Surve for a period of 99 years at specified figures of rent. Rao Saheb Surve sub-leased the property, the plot with the building, to one Shri Otto King for a period of 10 years from 1-1-1938 at a rent of Rs. 2,000 per month. Otto King started the business of running a guesthouse in the said building known as 'Lentin Court Guest House'. On 4-6-1946, Otto King assigned and transferred the business to a partnership consisting of Ram Kishan Mittal and Mrs. Shivdevi Shelly (the wife of the present assessee) in its entirety.
4. The partnership started the business and continued it subsequently taking in one more partner Madan Gopal Gupta. Though the partnership was initially for a period of two years, it continued till 31-7-1951 on which date R.K. Mittal and Madan Gopal retired from the firm under the terms of a duly executed dissolution deed. With effect from August 1951, the third partner, Smt. Shivdevi Shelly carried on the business of 'Lentin Court Guest House' as a sole proprietory concern. She remained the sole tenant of the immovable property known as 'Lentin Court'.
5. In the meanwhile, the Central Bank Executor and Trustee Ltd., Shri Dadi Sorabji Dubash and Allani Dadi Dubash being the trustees of a trust created under the will of one Sorabji Dadi Dubash became the lessee of the said plot No. 26 and the owner of the building thereon.
They were, thus, the landlords and owners of the building 'Lentin Court' on plot No. 26. On 15-10-1963, these owners agreed to sell the above property to the assessee, Shri B.R. Shelly. Thus, by this date, the assessee was the owner and the landlord of the property known as 'Lentin Court' consisting of the plot of land No. 26 under a lease with a building standing thereon. This building consisted of five floors with accommodation for 10 flats, Earlier, the landlord was receiving from the tenant, Mrs. Shivdcvi Shelly, the sole proprietor of the business carried on there, a monthly rent of Rs. 2,000. After the assessee purchased the property, he became the landlord and Mrs.
Shivdevi Shelly continued as the tenant in the property.
6. It would appear that there was a proposal for the sale of her business by Mrs. Shivdevi Shelly to her husband. The further proposal was after this transfer to discontinue the business run by Mrs.
Shivdevi Shelly and the assessee to dispose of the 10 flats in the building 'Lentin Court' on ownership basis. After the sale of the flats, a co-operative housing society was to be formed. The assessee, for his part, was to recover the entire money laid out by him in the property after such adjustment as was necessary in respect of the purchase of the business of his wife. Pursuant to the above proposal, one of the flats was sold to Mr. and Mrs. Daruwala. An agreement for the sale was entered into with them and a sum of Rs. 1,00,000 was also recovered. Since Mrs. Shivdevi Shelly was the tenant of the property, her proposed sale of the business to her husband would have resulted in the surrender of her tenancy rights in the building, thus, facilitating the sale of the flats by the assessee to different parties.
7. It, however, turned out that the assessee could not purchase the Lentin Court Guest House business from his wife. The further plans of selling out the flats in the building on ownership basis also fizzled out. The flat given in possession to Daruwala, however, remained in his possession but the full payments, etc., anticipated in pursuance of the sale agreement to him were not received. In the meanwhile, Mrs.
Shivdevi Shelly, the asses-see's wife, died on 21-10-1968. Under her will, her entire movable and immovable properties including the business of Lentin Court Hotel, namely, the Guest House, were bequeathed to her only daughter Prameela and her three children in four equal shares. The assessee was appointed as the sole executor. He obtained probate of the will on 30-7-1970 from the High Court of Judicature at Bombay. Clause 7 of the will of Mrs. Shivdevi Shelly, referring to the bequeathed properties, referred in particular to 'my said business of Lentin Court Hotel together with all the assets thereof including the goodwill thereof, the benefits of the tenancy rights of the entire Lentin Court Building and, .... The operative portion of the probate granted by the High Court to the assessee on 30-7-1970 is as under : Be it known that this day being the thirtieth day of July one thousand nine hundred and seventy the last will and testament (a copy whereof is hereunto annexed) of Shivdevi wife of Balwant Rai Shelly alias Mrs. Shelly Shivdevi of Bombay, Hindu inhabitant carrying on business in the name and style of Lentin Court Hotel, who died at Bombay on or about the twenty-first day of October one thousand nine hundred and sixty eight is proved and registered before this Court, and that administration of the property and credits of the said deceased, and in any way concerning her will is granted unto Balwant Rai Shelly in the will written B.R. Shelly the sole executor in the said will named to have effect throughout the State of Maharashtra, he having undertaken to administer the same and to make a full and true inventory of the said property and credits and exhibit the same in this Court within six months from the date hereof, or within such further time as the Court may from time to time appoint, and also to render to this Court a true account thereof within one year from the same date, or within such further time as the Court may from time to time appoint.
In pursuance of the grant of the probate, the assessee was performing his functions as the executor of the beneficiaries mentioned in his wife's will carrying on the business and in his representative capacity was paying to the landlord of the premises, namely, himself, as earlier done by his wife, a monthly rent of Rs. 2,000.
8. In working out the net wealth of the assessee for these two years, the value of the above asset was fixed by the WTO at Rs. 22,00,000 and Rs. 25,00,000, respectively. The assessee had shown the value of this property at Rs. 3,74,000. The WTO noted that for the assessment year 1974-75 the Tribunal fixed the value of the property at Rs. 16,42,000.
Looking to the fact that there was an appreciation in the value of the immovable properties from year to year, he enhanced the value to the abovementioned figures for these two years. It required to be mentioned that the valuation of this property was in dispute before the Tribunal for the assessment years 1972-73 to 1974-75 wherein the Commissioner (Appeals) had fixed the value of this property for the purpose of wealth-tax assessment of the assessee at Rs. 16,42,000. The department has challenged this valuation adopted by the Commissioner (Appeals) in these appeals. In the cross-objections, the valuation of Rs. 16,42,000 is challenged and it is claimed that the valuation should be made on the basis of the property being a residential property subject to the rent control regulations.
9. The learned counsel for the department has pointed out that apart from the valuation of this property being considered for several earlier years both at the assessment and appellate stages, there was a valuation made by a departmental Valuation Officer on 14-3-1985. Even this put the valuation of this property at Rs. 19,69,000 and Rs. 21,23,000 for the two years, respectively. The valuation adopted by the WTO for the earlier years was also based on the expert report of the District Valuation Officer dated 17-8-1979. This was an expert valuation with which no flaw could be found. Even otherwise, for the earlier years, the valuation was Rs. 16,42,000 having been upheld by the Tribunal. In view of the enormous increase in value of immovable property all over and in this particular area in particular, the value had to be much higher than that fixed by the Tribunal. The value adopted by the WTO, therefore, could not be said to be excessive or unreasonable. At any rate, having regard to the valuation report of the District Valuation Officer even though given in 1985 but giving the value for the earlier years, the value should be put at least at the figures fixed by the Valuation Officer.
10. The method of valuation adopted by the District Valuation Officer was the correct one, especially having regard to the special facts of the case. Even though a claim is made as to the dual capacity of the assessee with regard to this property, in effect, the assessee was the owner of the property as landlord. He represented his own interest, whereas as an executor he represented the tenancy interest of his children. Since the same party, though in a dual capacity, was involved, the assessee could easily sell the property free from any encumbrances, such as the Rent Control Act, since it was also easy to get the consent and co-operation of the tenants in the present case. In view of this special relation between the tenant and the landlord of this property, the Rent Control Act could not, according to the learned counsel, in any way affect the property. The only way, therefore, to arrive at the value of this asset includible in the asses-see's net wealth would be to follow the normal and well established principles of land and building. This has been done by an expert. In fact, the expert has taken the rental possibilities also into account by averaging the value obtained by two methods.
11. It is also pointed out that even though each year is a separate self-contained period and the valuation of property has to be made separately for each year, the principles of valuation would generally be the same. The principles therefor adopted by the Tribunal for the earlier years would be very relevant, if not binding, for the current year's valuation also. On the question of valuation by resort to Rule 1BB of the Wealth-tax Rules, 1957 ('the Rules'), it is pointed out that a hotel was run in the building. It could not, therefore, be called a residential building. According to the learned counsel, the case of J.V. Desai v. CIT  20 Taxman 179 of the Andhra Pradesh High Court was clearly distinguishable. The present assessee purchased a building where already a hotel was being run. He cannot, therefore, claim the property to be residential.
12. The learned counsel for the assessee has pointed out that there was a clearcut distinction between the landlord of a property and the tenant. Even when the same person holds these two capacities on behalf of two different persons, a tenancy does not revert to the landlord but keeps up its independent existence. Even though in the present case, the assessee was the executor of the will of late Mrs. Shelly, his position was purely that of a representative. Stress is laid in this connection on the obligations of the assessee under the probate issued by the High Court on 30-7-1970. The assessee was only the owner of a property which fetched for him as in the earlier years a rent of Rs. 2,000 per month which, according to the Rent Control Regulations, was subsequently raised to Rs. 2,682.50. The Rent Control Act applied to the case and the only method of valuing the property was by the rent capitalisation method.
13. The learned counsel has also pointed out that as far as the assessee was concerned he was the owner only of a residential building.
The fact that the tenants utilised the building for business or other purposes of their own would not take away the residential nature of the building. Stress is laid, in this connection on the decision in J. V, Desai's case (supra). The proper method of valuation of this property, therefore, apart from the other need for adopting the rental method, was to proceed according to rule IBB. Reference is made, in this connection, to the decision of the Bombay High Court in Jehangir Mahomedali Chagla v. M.V. Subrahmanian, Addl. First ACED  20 Taxman 4. This was an estate duty case where the valuation had to be made under Section 36(3) of the Estate Duty Act, 1953. The death in that case took place prior to the amendment of the Section in 1982.
Even so the Bombay High Court supported the application of Rule 1BB.14. It is also pointed out that both technically and legally the substitution of layman's valuation given by the WTO or the Commissioner (Appeals) for an expert valuation was an error. For the years under appeal, there was no reference to a Valuation Officer. The assessee had supported his valuation with the valuation report of a registered valuer. If the WTO thought that the value given was low or unreasonable, it was obligatory on him to refer the matter for that year to a Valuation Officer as an expert. Only in a case where the assessee's valuation report has been rejected after proper consideration by the District Valuation Officer could an estimate be made of the value. Referring to the provisions of Section 16A(1) of the Wealth-tax Act, 1957 ('the Act'), it is pointed out that a statutory valuation made under this section can be countered only by another valuer's report and after rejecting the contentions and the claims of the assessee's valuer's report. The valuation of this property after a proper recognition of the nature of the property should be made only by accepting the report of the registered valuer. A layman like the WTO could not reject this valuation. In view of Section 16A, where the WTO did not accept for some reason the value returned by the assessee, he has necessarily to refer the matter to an expert of equal competence.
According to the learned counsel, the expression 'may' used in Section 16A should be regarded as mandatory meaning 'shall'. Adopting this correct method of valuation, namely, the rental capitalisation method, the value returned by the assessee should be regarded as the proper value of this property.
15. The only issue in this appeal is the valuation of the property known as 'Lentin Court' for the purpose of its inclusion in the net wealth of the assessee. The facts detailed above help us to identify the legal nature of the property belonging to the assessee. In our view, the departmental authorities seem to have misconstrued the nature of the property actually held by the assessee. The assessee in this case is only the landlord of a property which has been rented out to a tenant and the tenancy is subject to the Rent Control restrictions. The history of the case referred to above covering a period from 1934 onwards indicates that different streams of succession relate to the landlord as well as the tenant. The streams are different and do not coalesce at any point of time. The original owners of the property at that time, a land taken on lease from the Port Trust, were Mr. Lentin and his wife who had constructed the building. Mr. Lentin was succeeded by Rao Saheb Surve as the owner of the property. The further succession took the property to the hands of the Central Bank's executor and trustee and Dadi Dorabji Dubash and Allani Dadi Dubash, which landlords sold the property to the present assessee, Shelly. The assessee, thus, acquired the rights of the landlord. On the other side, Rao Saheb Surve leased the property to Otto King, who himself assigned it to a partnership consisting of Ram Kishan Mittal and Mrs. Shivdevi Shelly carrying on a lodging business. With the dissolution of the partnership, Mrs. Shelly became the sole proprietor of the business and the rights of the lessee. On her death, the tenants' rights belonging to her devolved on the beneficiaries under her will, namely, her daughter and her three children. The assessee was made the executor under the will subject to the terms thereof and was granted probate on behalf of the beneficiaries. The tenancy on its line, thus, came down to the beneficiaries under Mrs. Shelly's will represented by the assessee as an executor. All the time the tenancy was subject to the Rent Control Acts and the tenant, whoever be the landlord and whoever he himself be, could have exercised all the rights available to him under the Rent Control Acts. During the year of account, the assessee is the landlord. As the executor of his wife's will and endowed with the responsibility of administering the estate on behalf of the beneficiaries, he is the tenant in the property. The two capacities are entirely different. While as a landlord the beneficial interest rests with him, the assessee has no beneficial interest at all but only a fiduciary responsibility to the beneficiaries as a tenant. These two distinct capacities are not the same and carry different rights and responsibilities. In evaluating the asset belonging to the assessee to be included in his net wealth, we are afraid, the department has confused the distinctly dual capacities in which the assessee figures.
The assessee is not the tenant of the property at all. The tenants are the beneficiaries under his wife's will. Since they have inherited the property from their mother and grandmother, all the rights of tenants the mother had would devolve on them as well. As statutory tenants, they are, therefore, as much protected by the tenancy laws as the mother herself was or the partnership prior to her or Otto King before that was. The clear fact, therefore, is that the property owned by the assessee even during the previous year relevant to the year under appeal is a rented premises controlled by the Rent Control Acts. The mere fact that the beneficiaries under the will are her relatives does not, in any case, release the assessee from his obligations under the Rent Control Act.
16. The learned counsel for the assessee pointed out before us that as soon as the grand-children of the assessee became major they have formed partnership having nothing to do with the assessee to carry on the business. This fact was adduced as an argument to show that their mere relation with the landlord in the present case did not release the landlord from his obligations under the Rent Control Act. In our view, while this fact does further support the assessee's case, even if no partnership was formed, the fact that the real owners of the tenancy and the business were beneficiaries under the will would have enabled them to exercise their rights as tenants. The feeble argument put forward on behalf of the revenue that being a close relative the assessee could even persuade the tenants to join him in selling the property would not represent the correct legal position. In every case, where a tenant is related to or under the control of a landlord in a rent control premises, certainly the personal influence or the injury inflicting capacity of the landlord might force the tenants to agree even to a sale of the property. Apart from the fact that this is not a legal right, it would certainly not extinguish the rights of the tenants under the Rent Control Acts. In the present case, the assessee as executor stands in a fiduciary relation to the beneficiaries of his wife's will. Anything done in connection with the financial interests of the beneficiaries-whether under the Rent Control Act or other financial operations-therefore, should be in the interest of beneficiaries. Otherwise, it would be a breach of trust. The assessee as the executor has to account to the High Court, as the terms of the probate indicate, for all financial details relating to the will. In law, therefore, the assessee landlord has absolutely no relation with the tenancy controlled by the executor of his wife's will, even though he happens to be such executor.
17. These facts clearly show that the property in the present case is to be valued on the basis of being let out and subject to the Rent Control restrictions. The methods of valuing residential property are the rent capitalising method, the land and building method or any other valid method, subject to the ascertainment of the market value. In CED v. Radha Devi Jalan  67 ITR 761, the Calcutta High Court held that the operations of Rent Restrictions Act cannot be ignored. They also observed that in estimating the rent at which a property was capable of being let out, the authorities were bound to take into account the restrictions imposed by the Rent Restrictions Act and arrive at the figure of fair rent accordingly. In the case of buildings which are in the possession of tenants and the tenants cannot either be evicted and the rent payable by them enhanced except in accordance with the provisions of Rent Control Act, the only appropriate method of evaluation is to capitalise the annual rent by a certain number of years' purchase. The method of valuing the land and the building separately and adding up the values was also held to be improper in such cases because they would ignore the impact of the Rent Control Act on the value of the land and the building.In Corporation of Calcutta v. Smt. Padma Devi AIR 1962 SC 151, the Supreme Court held that in determining the value of a property, regard must be had to the provisions of law which control the fixation of rent. In T.V. Radhakrishna Chettiar v. Province of Madras  2 MLJ 159, a Division Bench of the Madras High Court laid down that the proper method of valuation to be adopted in the case of a compulsory acquisition relating to a house and ground situated in a municipality and fetching regular income is to assess the value on the basis of capitalisation of the net annual income. In Rajasekhara v. Chairman, City Improvement Trust Board AIR 1957 Mys. 20, a similar decision was given. In CWT v. V.C. Ramachandran  60 ITR 103 their Lordships of the Mysore High Court held that in the case of buildings with compounds in a city, which buildings are in the possession of tenants, and the tenants cannot be either evicted or the rent payable by them enhanced except in accordance with the provisions of the Rent Control Act, the only appropriate basis is to capitalise the annual rent by a certain number of years' purchase. A similar decision was arrived at in Deviprasad Poddar v. CWT  Tax. 45(6)-34.
19. In all these cases, the Courts rightly emphasize that the revenue is not entitled to adopt a method of valuation divorced from the rent realities of the open market where the tenant cannot be evicted or higher rent cannot be legally demanded. In the present case, the property is rented. In including the value of the property in the net wealth of the landlord, therefore, the rent copitalisation method alone would be the proper method. The method adopted by the departmental valuer following the land and building method would be, as the decisions point out, absolutely incorrect for this property wherefrom the tenants cannot be evicted or the rent increased beyond what is permitted by law. No willing purchaser will go by or be pursuaded by this method.
The fact that the tenancy is looked after by the landlord himself in his capacity as an executor would not deprive the tenants of the advantages of the Rent Control Acts as to fair rent, security of tenure, etc. In our view, the department clearly fell into error in ignoring the clear dual capacity of the assessee which he cannot, once accepting the executorship of his wife's will, absolve himself of. The valuer has also valued the property on the misconception that since the assessee is the executor of the will he has in himself the combined rights of the landlord and the tenant. This is clearly wrong. It requires to be mentioned that even in cases where a property is self-occupied the Courts have laid down that the valuation should be made adopting the rent capitalisation method on the basis of standard rent. Decisions have also laid down how the annual income for this purpose is to be computed.
We, therefore, direct that the property in this case be valued on the rent capitalisation method.
20. The valuation of this property came up before the Tribunal for the earlier years as well. Some methods were followed for those years and for the department these decisions were cited before us. Normally, we would have followed these decisions. The valuation of a property, however, would change from year to year and the figures adopted for an earlier year, whatever be the method of valuation, cannot be adopted as such for a subsequent year. Apart from this, for the assessment years 1972-73 to 1974-75, the decisions relating to the rent capitalisation method as the proper method were not brought to the notice of or considered by the Tribunal. In the subsequent years' decision, the learned representative for the assessee, inter alia, urged the adoption of Rule 1BB method of valuation for this property-which he has repeated before us, It would appear that the proper distinction between the property let out by the assessee and the use to which the lessee, another entity, put it was not emphasized. The learned counsel has referred to two decisions-one of the Andhra Pradesh High Court and another, a binding decision of the Bombay High Court not considered earlier. We, therefore, have to arrive at the value of this asset afresh.
21. In the Andhra Pradesh High Court case in J.V. Desai's case (supra), the High Court clearly held that the nature of a building, residential or otherwise, depends on the person owning it. The mere fact that a residential building has been let out to a person who, with agreement or otherwise, uses it for a non-residential purpose would not make the building a non-residential one as far as the owner is concerned. This decision supports the present assessee. 'Lentin Court' in the present case, is a residential building with 10 flats ready as residential accommodation. True the landlord leased it out to persons who ran a guest house in those premises. If a landlord leases out his premises to another who authorisedly or otherwise uses it for business or as a factory or even for illegal purposes it would certainly be unfair to ascribe such user to the landlord. A point was made out for the revenue that in the present case when the assessee purchased the property, the then tenant was already running a business and so he should be regarded as treating the property as a business property. There is a fallacy in this argument. The landlord all through starting from Lentin in this case regarded the property as a residential building. The assessee succeeded to such landlords' rights. He, therefore, got the rights only in a residential property. If the residential property of Lentin leased over to someone else had been utilised by the latter for a business, it would still continue to be residential property in the hands of Lentin.
The assessee who succeeds to his rights in the property as such landlord should also be, therefore, regarded as the owner of residential property only. The expression 'residential' in this context should be understood in juxtaposition to factory, office or business premises. Certainly, it is not the case of the department that the assessee landlord was running a factory or an office.
22. The other decision cited for the assessee in Jehangir Mohomedali Chagla also supports his case. This was a case under the Estate Duty Act and concerned with Section 36(3) inserted by the Estate Duty (Amendment) Act, 1982, with retrospective effect from 1-3-1981. The valuation in that case was to be made as on 9-2-1981, i.e., prior to the insertion of Section 36(3). Their Lordships held that the valuation of this property should be made on the basis of the method recognized under Rule 1BB. The Bombay High Court held that harmonious construction demands that the method adopted or Rule 1BB of the Wealth-tax Rules laying down a recognized method should be employed while determining the value under Section 36(1) of the Estate Duty Act even in cases where death occurred prior to 1-3-1981. The Court also held "It was faintly contended that the rental method has no validity in determining the valuation of self-occupied residential house. The submission is not correct because the valuation of such house can be determined by capitalising the rent which such house would fetch if let out". This binding decision of the Bombay High Court does support a mandatory valuation under Rule 1BB for residential buildings. We have held that in the earlier decision of the Tribunal the point made out by the assessee's learned counsel that the assessee as landlord was owning a residential building which he leased out was misunderstood as the letting out involved user by them of the premises in their guest house business of the tenants. We do not desire to pronounce any decision as to whether a guest house where people regularly reside from day to day or from week to week would be a residential building since even that is used only for residence and not as a factory, office, etc. We have no doubt that the assessee as a landlord has let out his building though, to a businessman, only as a residential building.
23. In view of the above decision, it is not necessary to go into the question of the reference to the department's evaluation contested by the assessee. In essence, what the assessee submits is that the statutory valuation under Section 16A(l)(a) can be countered only by another valuer's report. The argument, in substance, is that the assessee has supported his return with a technical valuation. If the ITO wanted to throw out an expert's opinion, he should either have expert materials with him to do so or he should refer the matter to the departmental valuer whose technical and expert valuation will be binding on him. To this extent, the expression 'may' used in Section 16A(1) would, according to the learned counsel for the assessee, be mandatory-a substitute for 'shall'. We agree that an expert's value such as the one submitted by the assessee should not be thrown out on the mere whim or suspicion of the WTO. If he doubted the valuation for valid reasons, he is bound to refer the matter to a departmental valuer under Section 16A. The only reason urged in the present case is that the assessee's valuer returned a much lower figure than what the appellate authorities upheld for the earlier years. In our view, if this really led to a suspicion about the inaccuracy of the value returned the only course left to the WTO was to report to Section 16 A No layman can substitute liis arbitrary valuation for the technical valuation given by an expert. This unfortunately the WTO did not do.
One way of correcting this would be to direct acceptance of the expert valuation produced by the assessec since that stands unchallenged. In view, however, of the tortuous route this case has taken with a valuation made in 1979 and another in 1985 though not one for the relevant assessment year and other factors, we do not direct the WTO to do so. On the contrary, we direct that the value of this property be worked out on the rent capitalisation method and on the basis of Rule 1BB.