| SooperKanoon Citation | sooperkanoon.com/72580 |
| Court | Income Tax Appellate Tribunal ITAT Jodhpur |
| Decided On | May-09-2003 |
| Judge | H O Maratha, B Khatri |
| Reported in | (2003)81TTJ(Jodh.)253 |
| Appellant | Assistant Commissioner of Income |
| Respondent | Ramesh Chand Soni |
2. ITA No. 200/Jd/2002 is an appeal by the Revenue for the block period 1st April, 1988 to 15th July, 1998 and is directed against the order of CIT(A), Jodhpur dt. 27th March, 2002. CO No. 3/Jd/94 is cross-appeal by the assessee for the same block period and is also directed against the order of CIT(A), Jodhpur, dt. 27th March, 2002.
3. The facts leading to this appeal as well as cross-appeal are that on 15th July, 1998, a search under Section 132(1) of the IT Act, 1961 (hereinafter referred to as 'the Act') was carried out at the residential premises belonging to the assessee's HUF. A survey under Section 133A of the Act was carried out at the premises of the assessee-individual. A search and survey operations were continued on 16th July, 1998 and 17th July, 1998. On 15th July, 1998, 16th July, 1998 and 17th July, 1998, the authorized officer searched the entire house in which the assessee was residing. The officer conducting the survey under Section 133A brought the gold ornaments, silver utensils and ornaments, books of accounts and documents which were found at the shop during survey, to the residence where search was being carried out and the same were seized from the residence by the Department. This fact is evidenced from p. 23 of paper book (PB) and 6 to 9 of PB. This was presumably done by the Department under Section 133A as the authorized officer had no power to seize the same. On 15th July, 1998, the authorized officer seized the gold ornaments, silver utensils, cash and books of accounts and other documents which are detailed at p. 5 of the written statment of the assessee and not disputed by the Department. On 17th July, 1998, there was nothing to be seized. In all total number of documents seized were 80 which were seized vide Annexure S on 15th July, 1998, which is seized from the assessment order. A prohibitory order under Section 132(3) of the Act was issued on 15th July, 1998 and 17th July, 1998, in respect of the search done which was withdrawn on 28th Aug., 1998, and nothing was found to be seized from there. On 29th Oct., 1998, the AO issued notice under Section 158BC of the Act and in response to the same, the respondent-assessee filed his returns for the block period on 15th Feb., 1999 declaring undisclosed income at Rs. 21,60,763 on the basis of actual accretion of assets and paid entire tax amounting to Rs. 12,96,458 under Section 140A of the Act, On 8th March, 2001, the AO passed the assessment order under Section 158BC(c) of the Act. The assessee preferred an appeal against the order of the learned AO dt.
8th March, 2001, before the learned CIT(A) and raised as many as 28 grounds of appeal including the validity of the assessment order, assessment order being barred by limitation, about the existence of no circumstances of making reference under Section 142(2A) of the Act, and about the quantum of undisclosed income assessed inter alia. On 27th March, 2002, the learned CIT(A) passed the order under Section 250 of Act, and held the assessment order, passed by the AO on 8th March, 2001 as barred by limitation by accepting the alternative plea of the assessee but declined to consider the other grounds of appeal in view of this finding.
4. Against the order of the learned CIT(A) holding the order of the AO passed under Section 158BC of the Act, as barred by limitation, the Revenue has preferred this appeal and the assessee has filed the cross-objection on various grounds which include the grounds taken before the learned CIT(A).
5. First we will take up the appeal of the Department which relates to the holding of the CIT(A) that the order passed by AO under Section 158BC of the Act is barred by limitation.
6. We have heard the rival submissions and have also gone through the provisions of law and the decisions relied and placed before us.
7. The learned counsel, Shri Sandeep Bhandawat, appearing for the appellant Department, has submitted before us that the learned CIT(A) has erred in quashing the order of the AO holding it to be time-barred without considering the provisions of Section 158BE, Expln. (i) Sub-clause (ii) r/w Section 142(2A) and Section 158BH r/w Section 153(3), Expln. (1)(iii) of the Act. The learned counsel has further submitted that the provisions of Section 142(2A) of the Act will come to the rescue of the Department under which the Department can make enquiry before completing the assessment. Section 142(2A) falls in Chapter XIV of the Act. According to the learned counsel in this case, considering the complexity of the accounts, the same were referred to the auditor and time of 180 days was allowed to submit the report. The report came finally on 10th Jan., 2001. So, in his opinion, the assessment passed by the learned AO is well within time. In the alternative, the learned counsel has submitted that the Finance Act, 2002, which came into effect from 1st June, 2002, has extended further period of 60 days in the circumstances mentioned therein. So, according to the learned counsel, the extended time, if applied to these provisions, which are machinery provisions, then, in that case, the last date for completion of assessment order would be 30th March, 2002, since the assessment order was passed on 13th March, 2001, and the assessment has been passed on 8th March, 2001, so it is well within time.
8. He has submitted in his arguments, the difference in between machinery provisions and charging provisions of the Act. In this regard, he has relied on the Hon'ble Supreme Court in CWT v. Sharvan Kumar Swamp & Sons (1994) 210 ITR 886 (SC) at p. 886. But this decision is of no help to the Department as these are not applicable to the facts of the present case and are distinguishable. More, particularly, in the light of the fact that the Law of Limitation which has already expired is held a substantive right, which is a right of the party concerned as has been held by Hon'ble Supreme Court in National Agricultural Co-operative Marketing Federation of India Ltd. and Anr.
v. Union of India and Ors.(SC), J.P. Jani, ITO and Anr. v. Indu Prasad Dev Shanker Bhatt (1969) 72 ITR 595 (SC) and K.M.Sharma v. ITO (2002) 254 ITR 772 (SC). So the amended provisions of the Finance Act, 2002 would apply to the facts of this case. Finally, the learned counsel has submitted in this regard that calculating from either after applying the provisions of Section 142(2A) of the. Act, or in the alternative, applying amended provisions of Finance Act, 2002 which would have retrospective effect, the assessment passed is within limitation.
9. On the other hand, the learned counsel for the assessee, Shri U.C.Jain appearing on behalf of the assessee-respondent, has supported the orders of the learned CIT(A) on this issue and has further submitted by filing a detailed PB and other relevant documents that the assessment is time-barred, taken from any angle, as has been argued by the learned counsel for the Department.
10. The grounds of appeal speak about the provisions of Section 142(2A), Explanation of Sub-clause (ii) of Section 158BE, 158BH and Expln. III of Section 153(3) of the Act. For ready reference, we would like to reproduce all these sections as under: "142(2A). If at any stage of the proceedings before the AO having regard to the nature and complexity of the accounts of the assessee and the interests of the revenue, is of the opinion that it is necessary so to do, he may, with the previous approval of the Chief CIT or CIT direct the assessee to get the accounts audited by the accountant as defined in Explanation below Sub-section (2) of Section 288 nominated by the Chief CIT or CIT in this behalf and to furnish a report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed and such other particulars as the AO may require.
158BE(2). The period of limitation for completion of block assessment in the case of the other assessment referred to in Section 158BD shall be (a) one year from the end of the month in which the notice under this Chapter was served on such other person in respect of search initiated or books of account or other documents or any assess requisitioned after the 30th day of June, 1995, but before the first day of 1997; and (b) Two years from the end of the month in which the notice under this Chapter served on such other person in respect of search initiated or books of account or other documents or any assets as requisitioned on or after the first day of January, 1997.
158BH--Save as otherwise provided in this Chapter, all other provisions of this Act, shall apply to assessment made under this Chapter.
Explanation 1(iii) to Section 153(3)--The period commencing from the date on which the AO directs the assessee to get his accounts audited under Sub-section (2A) of Section 142 and ending with a report of such audit under that sub-section." 11. The assessee has put forth various other facts, which have not been disputed by the Department, lucidly and succinctly before us through its PB. All these facts were placed before the lower authorities. The assessee derives income manufacturing and sale of gold ornaments. In addition to that, the assessee also derives income from making of gold and silver ornaments on job work basis. The assessee is assessed in an individual capacity as well as in the capacity in Karta of HUF. The assessee commenced its individual business on 27th Sept., 1994, as a sole proprietor of M/s Ramesh Chand Prem Raj at Hathi Ram Ka Audha, Jodhpur. The assessee maintained regular books of accounts, purchase and sale vouchers from 27th Sept., 1994, onwards. The assessee filed returns for asst. yr. 1995-96 for the first year of his individual business (accounting period ending on 31st March, 1995). The assessee was partner in the firm M/s Jugal Kishore Ramesh Chand, prior to 27th Sept., 1994 and was having income from share profit from the firm, interest on capital from the firm, and salary as working partner from the firm. All these relevant documents find place at pp. 172 to 297 and 170 PB, filed by the assessee.
12. The assessee was a regular income-tax payer and filed returns for the previous year ended on 31st March, 1998, relating to asst. yr.
1998-99 prior to the date of search on 15th July, 1998, along with the audited balance sheet, P&L a/c, etc. The assessment for the first year of the individual business of the assessee for the period 27th Sept., 1994 to 31st March,1995 was completed under Section 143(3) and at no stage of the proceedings the AO considered the books or documents fit for referring to audit under Section 142(2A) of the Act and also for the period subsequent to 31st March, 1995 to 31st March, 1998.
13. The learned authorised representative, Shri Jain has tried to convince us that the assessee has been keeping routine accounts and the nature of accounts was not at all complex. The AO, at no point of time pointed out to the assessee about any complexity of the accounts in question. In this regard, the learned authorised representative has relied on the decision of Kerala High Court in the case of Dy. CIT v.Muthoottu Mini Kuries (2003) 128 Taxman 240 (Ker) wherein it has been held that before passing an order under Section 142(2A), the assessee is entitled to be heard. In the instant case, if it was heard, the assessee could have explained to the AO that there was no complexity in its accounts and, therefore, it was unnecessary to have a separate audit.
14. The main gist of the learned authorised representative of assessee is circling around the fact that the Department having missed the bus, manoeuvred somehow or the other to bring the assessment order passed in this case within limitation. Be it by issuing prohibitory order which was withdrawn on 28th Aug., 1998, as nothing was seized by way of Panchnama which finds place at p. 13 to 16 of PB or by resorting to the provisions of Section 142(2A) of the Act by referring the accounts to the auditor without any reasons existing as are required under the provisions of the said section. Furthermore, the learned counsel has argued that the way in which the reference under Section 142(2A) has been made in violation of the mandatory provisions of the section and the correspondence entertained between the learned CIT(A) and the auditor clearly speaks that the Department tried to enlarge the scope of limitation by any means.
15. The prohibitory order issued in respect of room in the basement was imposed on 17th July, 1998, and the same was withdrawn on 28th Aug., 1998. The Panchnama which is placed on P. 13 and 14 of the PB clearly shows that the room in question was empty, meaning thereby that the provisions was issued against vacant room, as whatever was to be seized, was already seized from the room. It is evident from the record that in response to the notice issued under Section 158BC on 29th Oct., 1998, the assessee filed returns for block period 15th July, 1999, declaring undisclosed income at Rs. 21,60,763 on the basis of actual accretion of assets and paid the entire tax amounting to Rs. 12,96,458 under Section 140A of the Act. It is also evident from pp. 67 to 74 of PB and 75-88 that the regular books found and checked and scrutinized with reference to the seized material and no complexity was noted or pointed out by the AO till 31st July, 2000, when the prohibitory order was clamped and lifted apparently for no purpose, and without the existence of the circumstances which are required under the provisions of Sub-section (3) of Section 132 for the exercise of the powers. If we ignore this imposing and lifting of the prohibitory order the date when search was completed is the last day of 17th July, 1998, when the Panchnama was drawn vide which articles were seized. So as per the provisions of Section 158BE, the AO was required to pass the assessment order under Section 158BC(c) on or before 31st July, 2000. So, in our opinion, the assessment became barred on 31st July, 2000. It is only on 2nd Aug., 2000 that the AO directed the assessee to get his accounts for the period from 1st April, 1988 to 15th July, 1998, audited under Section 142(2A) from the Chartered Accountant, A.R. Bhansali & Co. Copy of the letter forwarded under Section 142(2A) issued by learned AO dt.
2nd Aug., 2000, is available at P. 90 of PB. According to this, for the first time, it seems that the nature and complexity of the accounts was considered by Dy. CIT(AO).
16. It seems from the record that the learned AO may have passed the assessment order within time but for the reference made by the CIT, Jodhpur by concluding that having regard to the nature and complexity of the accounts and the interest of Revenue, it has been considered necessary to get the accounts audited by an accountant. It was also mentioned in this letter dt. 2nd Aug., 2000, that the assessee was required to make available books of accounts, documents, bills, vouchers and furnished forms/clarification required for audit and as sought by the accountant. It has been rightly argued by the learned authorised representative, Shri U.C. Jain that the books of accounts, documents, bills, vouchers were seized by the Department and were in the custody of the Department. So, there was no need for the assessee to provide any assistance regarding this audit.
17. We are also convinced that the CIT(A) may have entertained some doubts regarding the assessment order being passed by the learned AO.That is why, for the first time he resorted to the provisions of Section 142(2A) of the Act, simply stating that the accounts were complex and interest of Revenue is involved. We are also convinced by the arguments of learned counsel for the assessee that no date has been mentioned in this letter dt. 2nd Aug., 2000 regarding the completion of the audit by the auditor-firm, despite the fact that the limitation is very important in search cases. In any case, this seems to be exercise to save the assessment order from being barred by limitation. The time period, during which no books of accounts were found/maintained during the course of search and directions issued to get the accounts audited, also this fact was in the knowledge of the AO, definitely goes to show that judicial discretion was not applied to this fact. The plea by the learned counsel for the assessee is that till date, there is no approval of the CIT or Chief CIT for getting books of audit under Section 142(2A). Definitely, there is a violation of the mandatory rules. Even today it was not made clear as to whether any request was made by the AO to the CIT(A) and the CIT(A) had approved the same. Only pleasure of appointing of Chartered Accountant by the CIT(A) is mentioned in the letter dt. 2nd Aug., 2000, at p. 93 of the PB. In the letter dt. 18th Aug., 2000, which has been written by A.K. Bhansali and Co. to the Dy. CIT, it has been mentioned that a copy of the letter dt.
2nd Aug., 2000 was received in their office on 9th Aug., 2000 but before that date, on 7th Aug., 2000, the Chartered Accountant firm had received a copy of the letter from Shri Ramesh Chand Soni dt. 3rd Aug., 2000, vide which the assessee had objected to the special audit to be conducted under Section 142(2A). The learned counsel for the Department, Shri Bhandawat has tried to take advantage of this opinion contained in letter dt. 11th Aug, 2000, by arguing that it is only because of the objection of the assessee that assessment has been delayed. But we are afraid that we are unable to accept the plea of the learned counsel as he has not been able to pinpoint any steps taken in furtherance of this objection which actually delayed in passing of the assessment order. Letter dt. 18th Aug., 2000, written by assessee, Shri Ramesh Chand Soni to the firm of the Chartered Accountant which finds place on p. 94 of the PB only speaks about the non-existence of the complexity in the books of accounts and further stating that the assessment for the first year of business was completed under Section 143(3) of the Act and for subsequent years under Section 143(1) and no material was found even after search to disprove the accounts of the assessee. It has been mentioned in this letter that the firm was requested to wait till the decision was made by the Department on the application objecting the reference under Section 142(2A) of the Act.
But there is no evidence on record which the learned counsel Shri Bhandawat could show us that due to this objection of the reference made by the assessee, the assessment proceedings were hampered in anyway. At p. 95 of the PB, a letter dt. 16th Aug., 2000, is written by AO to assessee wherein it has been simply mentioned that the approval from learned CIT was obtained prior to referring the accounts to the auditor under Section 142(2A) of the Act and the objection raised by the assessee was declined. But when the learned counsel for the assessee has pointed out that for satisfaction of the assessee as well as the Tribunal, there is no document on record which could be shown to be as a reference as requested by the AO to the CIT and the granting of the approval by the CIT on that request to show that there was genuinely a requirement for referring the accounts specified. These documents seem to be of no help to the Department which can enlarge the scope of limitation for passing of the assessment order. Vide letter dt. 2nd Aug., 2000, the assessee requested the AO to supply him the copy of the note with the complexity forwarded by the learned AO to the learned CIT Jodhpur for obtaining approval and also copy of approval granted by the learned CIT Jodhpur but the same has not been replied and no information regarding the above facts was supplied to the assessee. Even when he enquired from the learned counsel, Shri Bhandawat on the date of hearing, he could not supply the same. The letter requesting the AO to supply the documents dt. 24th Aug., 2000, is placed at p. 96 of PB. A letter dt. 24th Aug., 2000, from the AO by the assessee wherein also the date by which the audit report is to be furnished by the Chartered Accountant to the AO is not mentioned. So the assessee has got a genuine grudge and objection regarding non-mentioning of the time, as this is the crux of the matter, so far as this issue is concerned. At page No. 98 of the PB, there is a letter written by assessee wherein it was requested to the AO that the assessment for the block period stands barred by the Law of Limitation, and as such, directions for getting the accounts audited under Section 142(2A) is invalid. By this letter, the assessee wanted to tell the AO that against the invalid audit reference, the assessee is not liable to make the payment of fees.
18. At pp. 161 and 162 of PB, there are letters written from the Chartered Accountant firm on 8th Jan., 2001, addressed to the AO while submitting the audit report under Section 142(2A) of the Act. From this letter it is evident that the original time-limit fixed for passing of the report was 120 days and at the request of the auditor, CIT(A), Jodhpur extended the time-limit from 120 days to 180 days and also fixed the remuneration of the auditor when it was pointed out by the assessee. It is also revealed from these pages of the PB that the audit period was curtailed to only years relating to asst. yrs. 1994-95 to 1999-2000 (upto 15th July, 1998, that is, for six years. The assessee's representative has rightly raised the plea that the assessee was nowhere informed of the original time allowed to the firm for submitting the report as well as the extended period of 180 days. The learned counsel for the Department could not point out by showing us any document which could reveal that such information was sent to the assessee. The AO passed the assessment order on 8th March, 2001. It is clear that even if the date of limitation is counted from the Panchnama dt. 29th Aug., 1998, from which prohibitory order was lifted, even then the assessment order is barred by limitation.
19. The learned authorised representative further submitted that Panchnama prepared on 28th Aug., 1998, vacating the prohibitory order issued under Section 132(3) cannot be taken as the date of completion of search as held in the following cases : (i) T.S. Chandra Shekar v. Asstt. CIT (2000) 66 TTJ (Bang) 360 : (2000) 113 Taxman 26 (Bang); andAnantha N. Naik v. Asstt. CIT (2000) 66 TTJ (Pune) 533 : (2000) 112 Taxman 281 (Pune).
He has further submitted that reference to audit by letter dt. 2nd Aug, 2000, is also of no consequences as : (a) The letter directing to get accounts audited under Section 142(2A) dt. 2nd Aug., 2000 was issued after assessment having barred by limitation on 31st July, 2000.
(b) In the letter learned AO has not mentioned the time period or date on which the assessee was to obtain audit report. The date is very crucial to decide the issue of limitation.
(c) There was application of mind while issuing the letter on 2nd Aug., 2000, in which the books of accounts was required to be audited for the period for which there was no books of accounts.
(d) Remuneration of auditor was not settled (it was only settled on 10th Oct., 2000).
(e) There was no complexity in the books found and seized. All the queries raised by learned AO were met and no assessment proceedings took place during the months of June and July, 2000 after filing of the assessee's reply and verification of seized papers in the month of May, 2000, itself.
(f) Even on the basis of same books, the learned AO passed order under Section 143(3) and felt no complexity in the books (asst. yr.
1996-97).
(g) That there was no application of mind at the end of the learned AO about complexity of accounts. The accounts maintained are so simple and proper income can be deduced therefrom. The condition laid down under Section 142(2A) do not exist at all.
Thus, the assessment order stands barred by limitation on 31st July, 2000, and any order passed after this date is liable to be quashed.
Even if it is taken that, time period is to be taken on the basis of Panchnama dt. 28th Aug., 1998, revoking the prohibitory order issued under Section 132(3) and the reference under Section 142(2A) on 2nd Aug., 2000 is within time, still assessment order passed on 8th March, 2001, is barred by limitation as provided under Section 158BE as : (i) That on 2nd Aug., 2000, when the reference was made under Section 142(2A) the time-limit left to learned AO was of 29 days as the learned AO was bound to pass an assessment order on or before 31st Aug., 2000.
(ii) That in the direction issued under Section 142(2A) the learned AO has not specified the date on which the assessee was required to furnish audit report yet from the letter of auditor Shri A.R. Bhansali of M/s A.R. Bhansali & Co., the time-limit given to auditor was of 120 days. This time-limit expires on 30th Nov., 2000.
(iii) That as per the letter dt. 8th Jan., 2000 of Shri A.R. Bhansali, they have requested the CIT to extend the time-limit from 120 days to 180 days and the CIT extended the time-limit from 120 days to 180 days. No request for extension of time for furnishing audit report was made by the assessee. In fact, no date for furnishing the audit report was given on any occasion. As per law, it is only the assessee, who can seek the extension and is only the learned AO, who is competent to extend the time. The learned CIT has no such power under the Act.
(iv) That from letter dt. 10th Oct., 2000, issued by the learned AO to M/s A.R. Bhansali & Co. it is clear that the time-limit for completion of audit under Section 142(2A) from 120 days to 180 days was extended by the CIT, Jodhpur.
20. We are convinced by the above submissions of the learned counsel for the assessee as we have also mentioned in our above discussions.
The proviso to Section 142(2A) reads as under : "Provided that the AO may, on an application made in this behalf by the assessee and for any good and sufficient reason, extend the said period by such further period or periods as he thinks fit; so, however, that the aggregate of the period originally fixed and the period or periods so extended shall not, in any case, exceed one hundred and eighty days from the date on which the direction under Sub-section (2A) is received by the assessee".
21. According to this section power of extending time-limit rests with the AO and not with the CIT. This power can be exercised only in the application made by the assessee. The time cannot be extended at the request of the auditor by the CIT from 120 days to 180 days. So the extension of time from 120 days to 180 days was not legal and valid, according to this provision. So, even if we accept the original period of 120 days permitted by the learned CIT to the auditor the report was due under Section 142(2A) on 30th Nov., 2000, and the learned AO, in that case could have passed the assessment order on or before 29th Dec., 2000, as only 29 days were left with the learned AO on the date of reference under Section 142(2A). Even in case we accept the arguments of Shri Bhandawat, learned counsel for the Department, that the CIT has all the powers of the AO and that too without application of the assessee, even on the request of the auditor, the time can be extended, in that eventuality also, the report under Section 142(2A) which was received by the learned AO on 10th Jan., 2001, makes this date, namely 10th Jan., 2001, as the date for determining the date for limitation. Only 29 days were left with the AO as the original time-limit were upto 31st Aug., 2000. If the date of lifting of the provision (prohibition), that is, 28th Aug., 1998, is considered as the date of completion of the search, even then limitation available with the AO was upto 8th Feb., 2001. So, clearly the order passed by the AO on 8th March, 2001, is barred by limitation, as the time taken by the auditor is to be considered and not the entire period of 180 days.
22. The alternative arguments taken by the learned counsel for the assessee is that if the period allowed by the learned CIT that is, 180 days is to be considered as the due date given by learned CIT for completion of audit, still the order passed on 8th March, 2001, is barred by limitation as provided under Section 158BE as : (a) Reference for audit was made on 2nd Aug., 2000, on which date only 29 days were left with learned AO for completion of assessment as per provisions of Section 158BE. (b) The period of 180 days expires on (i) 29 days of Aug., 2000 (ii) 30 days of Sept., 2000 (iii) 31 days of Oct., 2000 (iv) 30 days of Nov., 2000 (v) 31 days of Dec., 2000 (vi) 29 days of Jan.. 2001 180 days (c) That as per the above calculation the last date for submission of audit report under Section 142(2A) is 29th Jan., 2001.
(d) That since 29 days were left with learned AO for the completion of assessment for block period under Section 158BE on the date of reference, that is, 2nd Aug., 2000, the time-limit available with the learned AO for passing the order under Section 158BC was 29 days from 29th Jan., 2001 and as such the learned AO was under an obligation to pass the order on or before 27th Feb., 2001, that is, maximum time available as per law. As the learned AO passed the order on 8th March, 2001, the same is clearly barred by limitation as provided under Section 158BE and the learned CIT(A) rightly held so on the alternative ground of appeal.
23. It is made clear by the umpteen judicial pronouncements by now that Chapter XIV-B of the IT Act is a self-contained provision which is applicable to search cases and in that eventuality, it cannot be controlled by the provisions of Section 153(3), Expln. (iii) of the Act. Moreover, the subsequent change in law or amendment in law cannot revive the dead time for limitation. Amended law applies only to surviving procedures. So, there is no merit in the Department's appeal and, therefore, the same is dismissed.
24. Now we will take up the grounds taken by the learned authorised representative of assessee in the cross-objection filed by him.
25. The assessee has raised various grounds of appeal out of which cross-objections being ground Nos. 1 to 6 are material. Ground Nos. 7 and 8 are general in nature.
26. Ground Nos. 1 to 4 are in relation to our findings supra in relation to Department's appeal. As we have already accepted these pleas which are raised by way of cross-objection in the Department's appeal so we accept these grounds of appeal.
27. So far as ground No. 5 of cross-objections are concerned, this ground relates to passing of order on merits, we are also of the opinion that when the assessment order has been held to be barred by limitation then there is no need to decide the same. Moreover, when this ground does not arise out of the appellate order, it will be futile exercise in case we send back this issue to the CIT(A) for deciding this issue on merits. As a result, this ground of appeal is dismissed.
28. Ground No. 6 raised in the CO is that the assessee has pleaded to award costs. But the learned counsel has not been able to convince us regarding awarding of costs to the assessee. In addition to that, we are of the opinion that no cost is liable to be awarded to the assessee in the given facts and circumstances of the case. As a result, this ground of appeal is dismissed.
29. Remaining ground Nos. 7 and 8 are also dismissed being general in nature which does not require any adjudication in these circumstances.
30. As a result, we dismiss the appeal of the Department and partly allow the cross-objection of the assessee.