ORDER
Om Prakash, Judicial Member
1. These are the appeals of the revenue relating to the assessment years 1973-74 and 1974-75 against the combined order of the AAC. The assessee is a partner in the firm M/s Sardarmal Umraomal having 50 per cent share. The dispute relates to valuation of interest of the assessee, which he had in the said firm. The said firm derives income from manufacture and sale of semi-precious and precious stones. The firm disclosed gross profit rate for the assessment years 1973-74 and 1974-75 of 28 per cent and 27 per cent respectively. He, therefore, took the view that the market value of the closing stock of the firm exceeds the book value, which is the cost price, according to the assessee. The assessee disclosed the value of his interest as per the book value, meaning thereby, the cost price that was adopted by the firm. The WTO, therefore, pressed into service Rule 2B(2) of the Wealth-tax Rules, 1957, for short the Rules, 1957. He valued the closing stock of the firm on market value and then worked out the value of the assessee’s interest in the firm. On such working, the WTO made the additions of Rs. 28,560 and Rs. 22,200 for the years under appeal respectively. The assessee went up in the appeal to the AAC against the orders of the WTO. The AAC held that the WTO was not justified either in law or on facts invoking the provisions of Rule 2B(2) of the Rules, 1957 to determine the assessee’s interest in the said firm. He, accordingly deleted the impugned additions of Rs. 28,400 and Rs. 22,200 made for the years under appeal by the WTO.
2. Aggrieved, the revenue has come up in appeal to the Tribunal. It is convenient to dispose of both these appeals by a common order. Similar case came up for our consideration in WTO v. Smt. Lad Kanwar Dhadda [WT Appeal No. 756 (Jp.) of 1980] and assessment year 1975-76, WTO v. Smt. Jatan Devi Dhadda [WT Appeal No. 757 (Jp.) of 1980] assessment year 1975-76. In the combined order dated 23-7-1981, the Tribunal found as follows :
5. We have heard the rival submissions. There should be some positive materials with the WTO for determination of market value of the gems as on the valuation date. An ad hoc method based on empirical reasoning cannot be said to be correct. It might so happen that the more valuable gems have already been sold out and that remained was the inferior variety which can fetch much less profit. The assessee might have had a very good year, but on the last day the market value could got depressed. As argued by the learned counsel for the assessee might so happen that the overall gross profit is high because of sale of large number of profitable items leaving inferior material at the end of the year in the closing stock. Hence, unless the facts are analysed properly and positive material brought on record to show that the market value was very much higher than the cost price as on the last day of the accounting year would not be possible to uphold the WTO’s action. In fact, the burden rests heavily on the WTO to show that the market value was 20 per cent higher than the value disclosed for wealth-tax purposes before invoking Rule 2B(2). Since no evidence have been lot in by the revenue in this behalf, we have to agree with AAC and confirm Mm finding in this behalf. In the view we have taken is not necessary for us to consider the revenue’s ground that the AAC erred in holding that the provisions of Rule 2B(2) were not applicable. In the result, the ground raised by the revenue is rejected.
We respectively follow the said decision of the Tribunal and held that there is no material on record to reach the conclusion that value of closing stock of the firm, interest of the assessee in which, is to be valued, exceeds more than 20 per cent of the book value, which, was admittedly cost price as observed by the WTO in para 5 of his order. This being the factual position, the WTO was not justified in invoking the provisions of Section 2B(2) in these cases. The matter in issue being fully covered by the combined order of the Tribunal dated 23-7-1981, we do not propose to discuss the issue afresh. It was argued by the revenue that Rule 2B(2) is applicable in the circumstances of the case and that the AAC was wrong in observing that on the facts of the cases Rule 2B(2) could not be invoked. Shorn of legal verbiage, there being no material, to prove the factual position that market value of closing stock of the firm exceeds more than 20 per cent of the book value, which admittedly represents the cost price, we hold that applicability of Rule 2B(2) cannot be sustained on facts themselves. Rule 2B(2) can be applied only when the market value, exceeds more than 20 per cent of the book value. The revenue having miserably failed in establishing such factual position, the closing stock of the firm could not be valued on market value and, therefore, the additions being made by the WTO, are not sustainable.
3. Another common ground being raised in both the appeals is that the AAC erred in holding the firm as an industrial undertaking and in allowing exemption under Section 5(1)(xxxii) of the Wealth-tax Act, 1957 to the assessee in respect of his investment in the firm. The AAC has dealt with this ground in paragraphs Nos. 16 to 19 in his combined order. The assessee claimed that the firm M/s Sardarmal Umraomal, in which he was a partner, was an industrial undertaking within meaning of the WT Act, 1957. He therefore claims exemption is 5(1)(xxxii) the meaning of Explanation to Section 5(1)(xxxi), (sic) in respect of his interest in the said firm. The question is whether the firm is an industrial undertaking within the meaning of Explanation to Section 5(1)(xxxii). The firm carried on the business of manufacture and processing of semiprecious and precious stones. It is said that the wages were being-paid for cutting, shaping, chemical treatment and processing of the goods. On these facts, the AAC took the view that the assessee was involved in manufacturing and processing. He observes that the raw material is sorted out, chemically treated, processed and then polished into different varieties of the finished goods; We entirely agree with the AAC that the firm in which the assessee has interest and industrial undertaking in view of the Explanation to Section 5(1)(xxxii) and is entitled to exemption under Section 5(1)(xxxii). Similar view we have taken in so many other cases.
4. In the result, both the appeals are dismissed.
Ram Rattan, Accountant Member
1. I had the benefit of going through the combined order passed by the learned Judicial Member ; I do not fully endorse the views expressed and the conclusions arrived at by him. I am, therefore, recording my separate decision.
2. I am in agreement with the conclusions arrived at in para 4 of the combined order in holding the firm in which the assesses is a partner as an industrial undertaking and in allowing exemption under Section 5(1) xxxii) of the Wealth-tax Act, 1957.
3. I, however, disagree with the Judicial Member on the issue regarding applicability of Rule 2B(2) of the Wealth-tax Rules, 1957 and the deletion of resultant applicability of Rule 2B(2) of the Wealth-tax Rules is two fold. One is legal issue whether Rule 2B(2) can be invoked for valuing the interest of a partner in the firm. The other is whether on facts and market value of closing stock exceeds more than 20 per cent of the value adopted in the case of the firm. So far as the legal issue is concerned, the same is fully covered in favour of the revenue by three decisions of the ITAT functioning at Jaipur with different constitutions. The decisions are :
(1) Jaipur Bench decision in the case of Om Prakash Agarwal v. WTO [WT Appeal Nos. 50; to 512 (Jp. of 1979 dated 29-1-1981] relating to the asstt. years 1973-74 to 1977-78.
(2) Decision of Gauhati Bench camp at Jaipur in the case of WTO v. Abdul Jamil [WT Appeal Nos. 643 to 648 (Jp.) of 1980 dated 7-7-1981] relating to the assessment years 1970-71 to 1975-76.
(3) Decision of Calcutta Bench ‘A’ camp at Jaipur in the case of Gyanchand Kothari [WT Appeal Nos. 451 and 452 (Jp.) of 1980 dated 25-7-1981].
4. Following the above decision I hold that Rule 2B(2) of the Wealth-tax Rules, 1957 is undoubtedly applicable for valuing the interest of the assessee in the firm.
5. Rule 2B(2) provides for disturbing the value of a particular asset of the firm if the difference in market value of that asset and the value appearing in the Balance Sheet of the firm is more than 20 per cent. The learned Judicial Member has held that in the case of the assessee the difference is not more than 20 per cent. For coming to this conclusion he has relied upon an earlier decision of Jaipur Bench in the case of Smt. Lad Kanwar Dhadda (supra), the relevant extract of which has been reproduced in para 2 of the combined order. The view taken is that in valuing the closing stock “It might so happen that more valuable gems have already been sold out and what remained was the inferior variety which can fetch much less profit, the asseasee might have had a very good year but on the last day value could get depressed”. It is also observed that, unless the facts are analysed properly and positive material brought on record to show that market value was very much higher than the cost price on the last day of the accounting period it would not be possible to uphold the WTO’s action and the burden rested heavily on the WTO to prove that the market value was more than 20 per cent. In the combined order then material observation is made that WTO has not brought on record to reach the conclusion that market value of the closing stock was more than 20 per cent, of the value disclosed in the books of the firm.
6. I have my own reservations on this issue. I fully endorse the views that unless the facts are analysed properly and positive material brought on record, value of the closing stock cannot be determined. I do not agree with the remaining observations. The valuation of closing stock has to be as a matter of fact. It cannot be based on generalisations. I also do not agree that onus to bring the positive material on record is on the WTO and not on the assessee. On whom the onus lies would depend on the facts in each case. Coming to the facts of the instant case it is common ground between the parties that the rates of gross profits disclosed by the assessee for the assessment years 1973-74 and 1974-75 are at 28 per cent and 27 per cent respectively. It is also the case of the assessee that closing stock in the firm is valued at cost. The difference with reference to cost price works out to 38.88 per cent and 37 per cent respectively in terms of Rule 2B(2).
7. In a trading account where the method of valuing the closing stock is taken as the cost price, the G.P. will only be a difference between the purchased price and the sales price. Sale price is normally the market value of an asset on the date of its sale and the purchase price will be the cost of acquisition of the asset out of which profits have been earned. In other words, the market value will be the increase of GP earned over the purchase price. Now the percentages of GPs earned by the assessee for the two different assessment years have varied between 28 per cent and 27 per cent. In other words, the market price for different assessment years is more than 38 per cent and 37 per cent of the cost price. This is the position which emerges prima facie from a trading account where the method of valuing the closing stock is the cost price. The prima facie difference between the cost price and the market value can, however, be dislodged by certain factors. After considering the relevant facts some time the market value with reference to the valuation dates may be less than the percentage of increase of the GP rate and some times it may be more than the percentage of GP. The onus to dislodge this position, i.e., the apparent is not real in this case, consequently falls on the assessee by giving positive evidence that the real market vulue of the closing stock is lower than the increase in the GP rate. The submissions made before the WTO are hypothetical and general and not specific. Neither any basis for valuation of the closing stock has been spelt out. The submissions made before the AAC were as under:
(i) that precious stones have no ready market prices differ with different buyers ;
(ii) the entire stock if sold in one lot would, not fetch more than 15 per cent over the cost price ;
(iii) that the closing stock also contained old and rejected unsaleable goods which needed continued chemical treatment holding over, re-assortment and sometimes re-cutting which entailed heavy expenditure.
8. The 1st contention is too general in nature. This position will equally hold good when the goods have actually been sold during the course of the year, which have ultimately influenced the gross profit. The 2nd submission is also general in nature. The market value of the closing stock is to be arrived at with reference to actual sales transactions of similar goods around the closing date of the year, which will give an idea of market trends. The assessee has not brought any material on record to show that around the last day of the previous year there was downward trend in market so as to dislodge prima facie position there the market value is not equal to percentage of increase in the GP rate. This material is in the possession of the assessee and not the WTO and then it is assessee who makes such an assertion. The onus is upon one to prove what he asserts. Then I would add that a prudent businessman would try to get the highest price by selling the goods in piece meal and the market value has to be taken from the angle of a prudent businessman and not that the entire stock if sold in one lot would not fetch more than 15 per cent over the cost price when the margin of profits is about 27 per cent or so.
9. Another submission made before the AAC is that the stock-in-trade has to be carried over and held for a long period entailing reassortment, etc. Here also a general statement has been made. It has not been stated as to what was the stock which was brought forward from earlier years and again carried forward at the end of’ the year to which reassortment, fresh cutting, etc., had to be made during the year or in the subsequent year. Again if old stocks are being brought forward from year after year which required reassortment, recuttjing, etc., a point would arise whether after doing reassortment, recutting, etc., their value would increase or decrease as compared to the unfinished material. The reassortment and cutting would definitely tend to increase the market value and not decrease it. Neither the assessee has furnished stock details nor the learned AAC has asked for these details or gone into these aspects. The actual method of valuing the closing stock at cost price for the purpose of assessment under the IT Act has also not been spelt out. But the general practice in arriving at the cost price as followed by dealers in precious stone as given before us in the case of income-tax proceedings for the purpose of valuing the closing stock at cost in another case [IT Appeal No. 4128/Jp./80] has been given as under :
(1) Initially the price is offered to the foreign party.
(2) If the foreign party does not accept the offer, a counter offer is made by them resulting in the reduction in the price.
(3) If the counter offer is not acceptable to the exporter, the goods are reimported.
(4) The returned goods are again reasserted and re-exported at different prices and to different parties in some other countries.
10. For arriving at the cost price the asking price is taken as the market value and out of that certain percentage of GP is reduced. A further reduction is made at the rate of 1 to 2 per cent on account of fluctuation, on account of reduction in the asking price, i.e., reimports, reassortments, etc. In other words, to arrive at the cost price, deduction made from the asking price is more than the rate of G-P. To illustrate this proposition, we may say that where GP rate disclosed is 27 per cent, for the purpose of arriving at the cost price, deduction will be made at the rate of 28 per cent or 29 per cent instead of 27 per cent. If the asking price is Rs. 100, the cost price will be fixed around Rs. 72 or Rs. 71. This exercise on the contrary shows that the increase in the market value will be more than the GP disclosed. The learned counsel of the assessee on the contrary has claimed that the processes involved would reduce the valuing in the present case to more than 7 per cent to 9 per cent. The value of the closing stock has, therefore, to be found as a matter of fact taking into consideration the inventory of the closing stock as such and the method actually followed by the firm in valuing the closing stock at cost for the purpose of ” income-tax assessment. Old stock brought forward from earlier years and reflected in the closing stock and appreciation in their value after a period of number of years, their outmodedness or their having become obsolete. The actual sales in the last week or fortnight before the valuation date would also form a guide for arriving at the value of the closing stock on the valuation date. Sales during this period and even during the last one month of similar goods in the closing stock will form a better guide for valuing the closing stock. Then against the goods reimported where asking price was not accepted by the buyer, their actual sale price around the valuation date would form another guide fox-valuing the closing stock. Where the asking price has been accepted around the valuation date the actual asking price would be another guide for the purpose of arriving at the value of the closing stock. Since this exercise has not been done and the AAG has merely accepted the contention of the assessee on the basis of general arguments advanced without actually coming’ to any conclusion about the exact market value of the closing stock and the difference between it and the value taken for the purpose of income-tax assessment of the firm, I am of the opinion that on this limited question the matter should go back to the file of the AAC who should decide the same afresh in the light of the above observations. In case the details aforesaid are not forthcoming from the assessee, the AAC will be at liberty to estimate the value of the closing stock in accordance with law. It may be pointed out that similar issue had come up before Calcutta Bench in another appeal in the case of Gyanchand Kothari (supra) and the Bench vide order dated 25th July, 1981 in WTA Nos. 451 and 452/Jp./ 80 had similarly restored the matter back to the file of the AAC. Relevant extracts from the said order are reproduced below :
7. So far as the actual addition to the valuation of the closing stock is concerned, prima facie Rule 2B(2) appears to be applicable to the assessee’s case in as much as the gross profit disclosed by the assessee in both the Head Office and the Branch Office is more than 20 per cent and the valuation of the closing stock according to the WTO has been taken at cost so that the value can exceed the written down value or the book value adopted for the purpose of assessment of income-tax by more than 20 per cent. However, since the actual manner of valuation of the closing stock was not available before us and the AAC has made some general observations in the case of Dhanwar Singh, that realisation of higher profits would be the result of export sales tourists, matching, designing, repeated assortment, chemical treatment, etc. It would have to be found out as a fact as to what more expenses had to be incurred before the closing stock would be ready for sale and what was its market value on the relevant date involved in each case. The AAC has accepted the assessee’s contention on the basis of some general arguments advanced on its behalf without actually coming to any conclusion about the exact market value of the closing stock and the difference between it the value taken for the purpose of income-tax assessments of the firm. We, therefore, are of the opinion that on this limited question the matter shall go back to the AAC who shall decide the same afresh in the light of our aforesaid observations.
11. In the circumstances, I set aside the order of the AAC on this limited issue and restore the same to his file for fresh determination in the light of our above observations.
12. In the result the appeals are partly allowed though for statistical purposes.
REFERENCE TO A THIRD MEMBER UNDER Section 24(11) OF THE WEALTH-TAX ACT, 1957
As the Members of the Bench differ in opinion on the point: whether the G.P. rate being taken in the case of assessee can be a good guideline to come to the conclusion that the market value of the stocks belonging “to the assessee exceeds the cost price as adopted by the assessee for valuing the closing stock by more than 20 per cent, the following question is referred for the decision by a Third Member :
Whether, on the facts and in the circumstances of the case, the G.P. rate being taken in the case of the assessee constitutes adequate material to come to the conclusion that market value of the closing stocks of the assessee exceeds the value as adopted by the assessee by more than 20 per cent within the meaning of Rule 2B(2) of the Wealth-tax Rules, 1957.
Ram Rattan, Accountant Member
1. Statement under Section 24(11) of the Wealth-tax Act -1 have gone through the combined order passed by the learned Judicial Member under Section 24(11) of the WT Act. In my opinion the issues framed by him do not cover the real controversy. I shall, therefore, frame the points at issue as noted hereafter.
Rules 2B(2) of the WT Rules, 1957 reads as under :
(2) Notwithstanding anything contained in Sub-rule (1) where the market value of an asset exceeds its written down value or its book value or the value adopted for purposes of assessment under Income-tax Act, 1961, as the case may be, by more than 20 per cent, the value of that asset shall, for the purposes of Rule 2A, be taken to be its market value.
2. For invoking this rule it has to be found as a fact whether the market value of the asset exceeds 20 per cent of the value adopted for the purpose of assessment under the IT Act. The asset involved is the closing stock, in the firm in which the assessee is a partner. According to the assessee the closing stock for the purpose of IT Act was valued at cost. The issue, therefore, is whether the market value of the closing stock was more than 20 per cent of the cost price. It is agreed between the parties that G.P. rate for the assessment years 1973-74 & 1974-75, in the case of the firm is at 28 per cent and 27 per cent respectively. These rates are with reference to sales but according to Rule 2B(2) the difference of 20 per cent is to be taken with reference to cost. Where the G.P. rate is 28 per cent and 27 per cent the cost price would be Rs. 72 and Rs. 78 respectively against sale price of Rs. 100. The difference of Rs. 28 and Rs. 27 has to be worked with reference to the cost price. The difference with reference to cost, therefore, works out to 38.88 per cent for the assessment year 1973-74 and 37 per cent for the assessment year 1974-75. Against such vast difference [against 20 per cent provided in Rule 2B(2)], the value of closing stock has to be considered. For considering this issue a question would arise on whom the onus lies and to what extent and also the type of material for determining the value. 1 shall, therefore, frame the following issues for being referred to the 3rd Member :
1. Whether on the facts and in the circumstances of the case the gross profit rate in the case of the firm with reference to cost price 38.88 per cent for the assessment year 1973-74 and at 37 per cent for the assessment year 1974-75 will not prima facie show that the difference as provided under Rule 2B(2) is more than 20 per cent and the WTO has discharged the initial burden cast on him ?
2. If the answer to question No. 1 is in the affirmative, whether the burden shifts to the assessee to prove that the prima facie difference of 38.88 per cent and 37 per cent for the assessment years 1973-74 & 1974-75 is not real, by leading positive evidence particularly when he is in possession of evidence like vouchers, books of account, inventory of closing stock and not by hypothetical general statements ?
3. Whether any evidence has been adduced by the assessee to discharge the above burden ?
4. Whether market value of the closing stock to be found as a fact and whether any value has been fixed by the AAC of wealth-tax, if not whether the issue regarding actual market value of the closing stock should be restored to the file of the AAC for fresh determination ?
ORDER UNDER Section 24(11) OF THE WEALTH-TAX ACT, 1957 READ WITH Section 255(4) OF THE INCOME-TAX ACT, 1961
G. Krishnamurthy, President
1. In these cases the learned Members who heard these appeals could not agree on the conclusion to be reached. The point involved in these cases is whether only on the ground that the rate of gross profit shown by the trading account was more than 20 per cent to measure referred to in Rule 2B(2) of the WT Rules, could it be concluded that the market value of the closing stock was more by 20 per cent than the book value so as to treat that value as the market value for the purpose of wealth-tax. The learned Accountant Member has framed as many as four questions as his points of view whereas the learned Judicial Member has framed only one question as his point of view. The questions framed by the learned Accountant Member and Judicial Member are reproduced below :
Questions by the learned Accountant Member :
1. Whether on the facts and in the circumstances of the case the gross profit rate in the case of the firm with reference to cost price at 38.88 per cent for the assessment year 1973-74 and at 37 per cent for the assessment year 1974-75 will not prima facie show that the difference as provided under Rule 2B(2) is more than 20 per cent and the WTO has discharged the initial burden cast on Mm ?
2. If the answer to question no. 1 is in the affirmative, whether the burden shifts to the assessee to prove that the prima facie difference of 38.88 per cent and 37 per cent for the assessment years 1973-74 and 1974-75 is not real, by leading positive evidence particularly when he is in possession of evidence like vouchers, books of account, inventory of closing stock, etc. and not by hypothetical general statements ?
3. Whether any evidence has been adduced by the assessee to discharge the above burden ?
4. Whether market value of the closing stock has to be found as a fact and whether any value has been fixed by the AAC of wealth-tax ; if not, whether the issue regarding actual market value of the closing stock should be restored to the file of the AAO for fresh determination ?
Question by learned Judicial Member :
1. Whether, on the facts and in the circumstances of the case, the G.P. rate being taken in the case of the firm constitutes adequate material to come to the conclusion that market value of the closing stocks of the firm exceeds the value as adopted by the firm by more than 20 per cent within the meaning of Rule 2B(2) of the Wealth-tax Rules, 1957 ?
2. I have heard the cases at length and my task is made much easier by the decision of the Special Bench in the case of WT Appeal No. 9 (Delhi)/1984 where the Special Bench after considering the elaborate arguments addressed to it and after carefully considering all the relevant aspects of the case came to the conclusion, that the solitary fact that higher rate of gross profit was shown by the trading account would not by itself be taken to be conclusive proof of the fact, that the market value of the closing stock shown in the trading account would be more than the book value by 20 per cent in order that the Rule 2B(2) could be invoked. This is also the view taken by another Bench of the ITAT in WT Appeal Nos. 62, 60 & 61/Jp./1981 where on a difference of opinion between the Members, the Third Member came to the same view as that of the Special Bench referred to above. This also is the view taken by the several other Benches of the Tribunal. There thus appears to be unanimous view that mere fact that the trading account showed higher rate of profit (more than 20 per cent) that by itself could not conclusively show that the market value of the closing stock shown in the books is more by 20 per cent than the book value. I lay emphasis on the measure of 20 per cent referred to in Rule 2B(2) of the WT Rules. It is that measure of 20 per cent that gives the jurisdiction to the WTO to invoke Rule 2B(2). For a variety of reasons which have been very elaborately discussed in all those orders is well nigh impossible to say that the market value of the closing stock would be more by the measure of 20 per cent. I, therefore, following respectfully the views expressed by the Special Bench and other Benches referred to above, agree with the view expressed by the learned Judicial Member.
3. At the time of hearing, the learned counsel for the assessee Mr. Ranka pointed out that in the case of another co-partner Shri Umrao Mal Dhadda of this firm for the same assessment year the Tribunal held in favour of the assessee. The order of the Tribunal is given in the paper book at page 14. A similar view has also been expressed by another Bench which is WTO v. Gopi Chand Rawat [1983] 5 ITD 667 (Delhi). The learned Advocate submitted that following the order passed by the Tribunal in the case of another co-partner must be held that the view taken by the learned Judicial Member is the correct view. I am in agreement with this issue. Not only in the case of Umrao Mal Dhadda another co-partner the same view as I have just mentioned was taken but also in the Special Bench as well as in the other cases. Therefore, this is an additional reason why I am in agreement with the view expressed by the learned Judicial Member.
4. The matter will now go before the regular Bench so that the appeal can be disposed of in accordance with the opinion of the majority.
ORDER UNDER Section 24(11) OF THE WEALTH-TAX ACT, 1957
Y.R. Meena, Judicial Member
1. These appeals are by the Revenue. The only main issue for our consideration in these appeals are whether on the facts and in the circumstances of the case the Commissioner (Appeals) erred in holding that the WTO was not justified in invoking the provisions of Rule 2B(2). There was a difference between the Members of the Bench. The matter was referred to the President under Section 24(11) of the WT Act read with Section 255(4) of the IT Act, 1961. The Hon’fole President as Third Member has agreed with the view taken by the Judicial Member. The majority view expressed is that Rule 2B(2) cannot be invoked on the facts and in the circumstances of the case. Following the majority view, we confirm the view taken by the CWT (A). Since there is no difference of opinion with regard to Section 5(1)(xxxii), the view taken by the CWT (A) is confirmed.
2. In the result, the appeals of the Revenue are dismissed.