Income Tax Appellate Tribunal - Bangalore
Wipro Finance Ltd. vs Deputy Commissioner Of Income Tax on 21 March, 2003
Equivalent citations: (2003)80TTJ(BANG)571
ORDER
Order passed under section 158BC--Warrant of authorisation issued before 1-1-1997 Catch Note:
On issuing warrant of authorisation, the search is deemed to be "initiated" and where the search is initiated after 30-6-1996 and before 1-1-1997 the appeal against order of block assessment lies with the Tribunal. Thus, in assessee's case warrant of authorisation was issued on 30-12-1996, i.e., the date prior to 1-1-1997, therefore, appeal before Tribunal against order passed under section 158BC was rightly maintainable.
Ratio:
On issuing warrant of authorisation, the search is deemed to be "initiated" and where the search is initiated after 30-6-1996 and before 1-1-1997 the appeal against order of block assessment lies with the Tribunal. Thus, in assessee's case warrant of authorisation was issued on 30-12-1996, i.e., the date prior to 1-1-1997, therefore, appeal before Tribunal against order passed under section 158BC was rightly maintainable.
Held:
A perusal of section 253(1)(b) brings out an incontrovertible, unambiguous and clear conclusion that in cases where the search is initiated after 30-6-1995, and before 1-1-1997, the appeal against the block assessment framed by the assessing officer in such cases shall lie with the Tribunal. These dates are mentioned in the section itself and do not require any complex process of discovery or interpretation. In contradistinction, in cases where the search is initiated after 1-1-1997, the appeal against the block assessment order framed by the assessing officer shall lie with the Commissioner (Appeals) in terms of section 246(1)(k).
"Initiation of search" commences with the "issue of authorisation" by the authorities.
Warrant of authorisation to search the premises of the assessee was issued by the DIT, on 30-12-1996. This fact is undisputed as the same is evidenced by the panchnama issued by the department. The conclusion would be that the search is deemed to have been initiated on 30-12-1996, a date being prior to 1-1-1997. Therefore, the Tribunal had valid jurisdiction in terms of section 253(1)(b) to hear the appeal. The said issue can also be looked at from another angle. By way of sub-clause (b) of section 253(1) the appeal provisions are triggered not only by the passing of the order by the assessing officer but is also coupled with additional requirement that the search resulting in assessment should have been initiated between 30-6-1995 and 1-1-1997. Therefore, the issue of jurisdiction to entertain the appeal in terms of clause (b) is not only dependent on the passing of the order by the assessing officer but is also required to be decided vis-a-vis the date of initiation of search. From this angle also, the present appeal of the assessee is within the four corners of section 253(1)(b) and enjoin the Tribunal to entertain the same. Accordingly, the appeal is maintainable.
Case Law Analysis:
T. O. Alias v. Asstt. CIT & Anr. (1998) 5 DTC 474 (Ker-HC) : (1999) 238 ITR 335 (Ker), Artisan Press Ltd, v. ITAT & Anr. (1958) 33 ITR 670 (Mad) and Nilesh Himanj v. CIT & Ors. (1999) 10 DTC 221 (Cal-HC) : (1999) 239 ITR 517 (Cal) and Nirmal Ghosh Bag v. Dy. CIT (2003) 30 DTC 427 (Del-Trib) : (2002) 82 ITD 788 (Cal-Trib) applied.
Application:
Not to current assessment year.
Decision:
In favour of assessee.3 Assessment Year:
Block period 1991-92 to 1996-97 Income Tax Act 1961 s.253(1)(b) Income Tax Act, 1961 Section 158BC Search and seizure--BLOCK ASSESSMENTLimitation Catch Note:
In assessee's case search was concluded on 28-2-1997. Assessment completed by the assessing officer on 29-1-1999. The order passed by the assessing officer was, therefore, clearly barred by limitation under section 158BE because the assessment ought to have completed on or before 28-2-1998.
Ratio:
In assessee's case search was concluded on 28-2-1997. Assessment completed by the assessing officer on 29-1-1999. The order passed by the assessing officer was, therefore, clearly barred by limitation under section 158BE because the assessment ought to have completed on or before 28-2-1998.
Held:
Section 158BE(1)(a), which provides that the assessment should be completed within 1 year from the end of the month in which last of the authorisations for search under section 132 was issued, would be applicable. Having regard to the Explanation 2 and section 158BE(1)(a) the assessment in this case ought to have been completed on or before 28-2-1998. However, the assessment under section 158BC in this case has been completed on 29-1-1999, which is clearly beyond the period of limitation provided under the Act.
Application:
Not to current assessment year.
Decision:
In favour of assessee.3 Assessment Year:
Block period 1991-92 to 1996-97 Cases Referred:
CIT v. Bikall Dadabhai & Co; (1961) 42 ITR 123 (SC) CIT v. Ishwar Singh & Sons (1981) 131 ITR 480 (All), CIT v. Kurban Hussain Ibrahimali Mithiborwala (1971) 82 ITR 821 (SC), CIT v. Thayaballi Mulla Jeevall Kapasi (Decd) (1967) 66 ITR 147 (SC), Dr. A.K. Bansal v. Asstt. CIT (2000) 73 ITD 49 (All-Trib)(TM), Lala Madan Lal Agarwal v. CIT (1983) 144 ITR 745 (All), P.N. Sasikumar & Ors. v. CIT (1988) 170 ITR 80 (Ker), Southern Herbals Ltd. v. Director of IT (Inv) & Ors. (1994) 207 ITR 55 (Karn), T. O. Abraham & Co. & Anr. v. Asstt. Director of Income Tax (Inv) (1999) 7 DTC 282 (Ker-HC) : (1999) 238 ITR 501 (Ker), Verma Roadways v. Asstt. CIT (2000) 75 ITD 183 (All), V. V. S. Alloys Ltd. v. Asstt. CIT (2001) 22 DTC 469 (All-Trib) : (2000) 68 TTJ (All-Trib) 516 and Y. Narayana Chetty & Anr. v. ITO & Ors. (1959) 35 ITR 388 (SC).
Income Tax Act 1961 s.158BE ORDER Hari Om Maratha, J.M.
1. The assesses has filed appeal in relation to the block assessment order passed by the AO. Subsequently the assessee filed petition for grant of stay of the outstanding demand of Rs. 26,82,58,581.
2. At the time of hearing of the stay petition Mr. Indrakumar, advocate and Special Counsel, appearing for the Department vehemently insisted that the issue of maintainability of appeal before the Tribunal should be addressed first before any petition for stay or any other application for interim relief is considered by the Tribunal. The written objections were filed in the income-tax appeal itself, though the petition posted for hearing was to consider the stay of demand. Mr. Indrakumar intervened repeatedly and also filed written arguments even before oral arguments were addressed insisting that the issue of maintainability should be addressed first. Accordingly, the appeal itself was posted for hearing and heard. In view of the fact that, the appeal was taken up for hearing, the stay petition filed by the assessee becomes infructuous and is accordingly dismissed.
3. Shri Pradeep, learned counsel for assessee, submitted that the Tribunal had valid jurisdiction to hear this appeal under Section 253(1)(b) of the IT Act, 1961 (hereinafter referred to as "the Act"). Section 253(1)(b) is in the following terms :
"253(1) Any assessee aggrieved by any of the following orders may appeal to the Tribunal against such order :-
(b) an order passed by an AO under Clause (c) of Section 158BC, in respect of search initiated under Section 132 or books of account, other documents or any assets requisitioned under Section 132A, after the 30th day of June, 1995, but before the 1st day of January,1997...."
4. It was submitted by the learned counsel that the assessment order under Section 158BC of the Act was passed on 29th Jan., 1999, consequent upon the notice under Section 158BC issued to the assessee on 13th Jan., 1997. As per the warrant of authorisation issued by the DIT, Bangalore, dt. 30th Dec., 1996, the assessee's premises were subjected to a search purportedly under Section 132 of the Act. This fact is evident from the copy of the Panchnama given by the search party. Under the said authorisation, the assessee's premises were searched from 3rd Jan., 1997 to 28th Feb., 1997. During the course of the search several documents were seized and it is stated that none of them were incriminatory in nature. It was brought to our notice that reasons for issue of notice under Section 158BC or for conducting search has not been made available to the assessee though such a request was made during the course of assessment. Similar request was also repeated before us-both in writing and through oral submission. Learned counsel submitted that the only clue provided by the Department regarding the search is found in para 3 of the assessment order. The relevant portion reads :
"On the basis of evidence collected during searches and surveys carried out at the premises of the lessor, lessees and suppliers, the Investigation Wing came to the conclusion that the assessee-company had made bogus claims of depreciation in almost all the 16 cases."
Based on the above observation, it was contended that to decide the date of initiation of search and actual date of search, etc. the events of search at various places mentioned in the paragraph (supra) should be considered. Accordingly, it was brought to our notice that the earliest search was in the premises of the lessee of the assessee, M/s Bhagyalakshmi Vegetable Products Ltd., Adoni, conducted on 19th Aug., 1996, which is discovered from the copy of sworn statement recorded from Mr. T.G. Suryanarayana, director of M/s Bhagyalakshmi Vegetable Products Ltd. The said statement was recorded on 19th Aug., 1996, during the course of proceedings under Section 132 of the IT Act. The said statement is found in the paper book at p Nos. 302 to 304. A perusal of the statement clearly indicates that all the questions and answers pertain only to the transactions of the said company with the assessee and not to any other transactions or assessment of M/s Bhagyalakshmi Vegetable Products Ltd. On this basis, it was submitted that the search is deemed to have been initiated prior to 19th Aug., 1996, or at least on 30th Dec., 1996, when the warrant of authorisation was issued by the DIT, Bangalore. On this basis, it was submitted that "initiation of the search" was prior to 1st Jan., 1997, which is clearly a date covered in Section 253(1)(b) which confers the jurisdiction to the Tribunal.
5. As to the meaning of the word "initiation", learned counsel brought to our attention several decisions to stress on the point that "initiation" would mean the very first act in a series of acts. In the case of a search under Section 132, the authority which issues warrant under Section 132 has to satisfy itself about the applicability of conditions outlined in Section 132(1)(a), (b) and (c) of the IT Act. Once the authority is satisfied, then warrant is issued authorising lower authorities to actually execute the warrant and conduct the search. Thus, issue of warrant of authorisation, being the first firm and authenticate step, for conduct of search, would mean "initiation" of the search. The learned counsel, further drew our attention to Section 158BE, Expln. 2, which was inserted in Finance Apt, 1998, with retrospective effect from 1st July, 1995, reads as under:
"Explanation 2 : For the removal ,of doubts, it is hereby declared that the authorisation referred to in Sub-section (1) shall be deemed to have been executed--
(a) in the case of search, on the conclusion of search as recorded in the last panchnama drawn in relating to any person in whose case the warrant of authorisation has been issued."
6. A reading of the above makes it amply clear that execution of the warrant means conclusion of a search as recorded in the last panchanama. Execution of warrant is when the premises sought to be searched is entered and search is commenced based on the warrant of authorisation already obtained. A similar view has been taken by the Bangalore Bench, in IT(SS) A No. 4/Bang/1999. Para 10 of the order reads ;
"10. From careful reading of the provisions laid down under Section 132 of the Act, it appears that there is primarily a person who decides about the search and also decides who shall carry the search. The person who carries out the search is a person who obeys the command given to him by another superior officer and such a person who is commanded to perform an act can never be said to initiate the search, the person who decides the search is the person who initiates the search and it always precedes the actual search. We thus are of the view that the initiation of search is made by the DG or CC, etc. which contains a direction on the officer whose name is mentioned therein to enter the premises to search and seize. In order words a search cannot be conducted without prior authorisation of the superior officer. In the present case undisputedly the warrant of authorisation of search was issued by the DIT on 30th Dec., 1996, in pursuant thereof search was conducted in the premises on 8th Jan., 1997 and 10th Jan., 1997. We accordingly are of the clear view that the search was initiated on 30th Dec., 1996, in pursuant thereof the search was conducted in the premises of the assessee on 8th Jan., 1997 and 10th Jan., 1997 (as per the assessment order)."
7. In conclusion, it was submitted by the learned counsel that in all cases where search has been initiated after 1st Jan. 1995, and before 1st Jan., 1997, appeal can only lies directly with the Tribunal on all block assessments made under Section 158BC of the Act. In this case, based on the materials obtaining on record, the initiation of search has been done prior to 19th Aug., 1996 or at least on 30th Dec., 1996, i.e., the date of authorisation issued by the DIT, Bangalore, and both the dates are prior to 1st Jan., 1997. Consequently, the jurisdiction is with the Tribunal.
8. The learned Departmental Representative had submitted preliminary objections on 13th Dec., 2002, even before the assessee had made its submissions. He further submitted another written statement consisting of 20 pages, dt. 3rd Jan., 2003. The contents of the written statement were also submitted orally. The submissions in brief are ;
Though the initiation of the search is prior to 1st Jan., 1997, yet since the AO has indicated in the demand notice the appellate authority as CIT(A) and not the Tribunal, the jurisdiction would lie with CIT(A) under Section 246A(1)(k) and not under Section 253(1)(b). In support of his argument, he relied on his written submission dt. 3rd Jan., 2003. The relevant portion reads :
"Since there is a difference of only two days between the date of issue of warrant of authorisation in this case and the date from which the amended provision of Chapter XIV-B came into effect, the assessee is trying to make out a case that "date of issue of a warrant of authorisation" meant the same-thing as "date of initiation of search" and that the two expressions were identical in meaning. However, the date of issue of a warrant of authorisation for a search can, by no stretch of imagination, be interpreted as the date of initiation of the search itself. The two dates are as distinct as the events themselves, there can be cases where a search may not be initiated in pursuance of a warrant of authorisation, or where the authorisation may remain unexecuted for various reasons, or where initiation of a search may take place a long time after a warrant of authorisation is issued. To accept the assessee's argument would mean that a search is automatically initiated when a warrant of authorisation is issued and that such a search would remain open indefinitely, even if the warrant is not executed at all by the act of physically searching a premises or place. There could be no more perverse interpretation of the legislative intention or of laws governing the search and seizure assessments."
9. Further, in para 9 of his written submission, he submits :
"It is, therefore, submitted that an appeal against the block assessment order passed in the assessee's case would lie to the CIT(A), and not to this Hon'ble Tribunal, inasmuch as, the block assessment is apparently concluded by the assessing authority, under Sections 158BC(c) and 158BE(1)(b) of the Act. In this situation, the appeal preferred by the assessee before this Hon'ble Tribunal is not at all maintainable in law. Even if the assessee is assailing the legality of the assessment on the grounds of applicability of the provisions of Section 158BE(1)(a) of the Act, yet, inasmuch as the block assessment is admittedly and apparently made on the ground of applicability of the provisions of Section 158BE(1)(b) of the Act, the appellant can only prefer the appeal as provided in Section 246(1)(k) of the Act. In support of this legal position, reliance is placed on a decision of the Supreme Court in the case of CIT, v. Bikaji Dadabhi & Co. (1961) 42 ITR 123 (30) at p. 126 wherein the apex Court has held that even if the ITO committed an error in passing any order, an appeal against such order can only be preferred before the next appellate authority, (AAC) and that the exercise of the appellate jurisdiction by such appellate authority is not made conditional upon the competence of the ITO to pass the orders made appealable. This legal position is explained by the Supreme Court thus.
We are in agreement with the High Court that the appeal to the AAC was competent. Even if the ITO committed on error in passing the order imposing penalty because the conditions necessary for invoking that jurisdiction were absent, an appeal against this order on the ground that he was not competent to pass the order did lie to the AAC. The AAC is under the Act constituted an appellate authority against certain orders of the ITO, and exercise of that jurisdiction is not made conditional upon the competence of the ITO to pass the orders made appealable. The AAC had as a Court of appeal jurisdiction to determine the soundness of the conclusions of the ITO both on questions of fact and law and even as to his jurisdiction to pass the order appealed from.
In the light of the foregoing legal position, it is reiterated that the present appeal preferred by the assessee before this Tribunal is not maintainable."
10. The stand of the Revenue on the question of deciding the appellate jurisdiction is linked to the passing of order of the AO. It is submitted that the AO in the present case has passed the order considering the search is deemed to have been initiated after 1st Jan., 1997. The learned Departmental Representative submitted that even if the stand of the AO was not in conformity with the law, yet the said assessment order was the only order existing on the date and as per such order the appeal against it lay with the CIT(A) in terms of Section 246A(1)(k).
11. In reply, the learned counsel drew our attention to Section 246A(1)(k) which reads :
"an order of assessment made by an AO under Clause (c) of Section 158BC, in respect of search initiated under Section 132 or books of account, other documents or any assets requisitioned under Section 132A on or after the 1st day of January, 1997"
The learned counsel submitted that the above section applies to all searches initiated after 1st Jan, 1997, whereas Section 253(1)(b) applies to searches initiated after 30th June., 1995 and before 1st Jan., 1997. Thus, there is no confusion at all in deciding the jurisdiction of the appeal as to where it lies. If the search is initiated before 1st Jan., 1997, the appeal would lie with the Tribunal as in this case under Section 253(1)(d), whereas if the search is initiated after 1st Jan., 1997,the appeal would lie before CIT(A) under Section 246A(1)(k). When these dates are found in the Act, it is incorrect for the Department to say that there was only difference of two days or four days and thereby seek to apply a provision, which is date-specific and not applicable. The AO cannot decide as to the jurisdiction of the appellate authority. Jurisdiction should be decided on what the Act says rather than on what the AO says. In this case, the law clearly states in terms of Section 253(1)(b) that the appeal lies with the Tribunal and any contrary view cannot be entertained. The decision of the Hon'ble Supreme Court relied on by the learned Departmental Representative is general in terms inasmuch as the Hon'ble Supreme Court expects the assessee to file on appeal on all its grievances and the appellate authority, as a Court of appeal, has the jurisdiction to decide all questions raised in the appeal. This decision does not take away the jurisdiction conferred under the Act. As to the argument that "initiation" does not mean "issue of warrant of authorisation" it is submitted that the case law relied on by the assessee clinches the issue. The learned counsel further submitted that the provisions relating to block assessments use different words in different sections and words such as "initiation" "commencement", "execution of warrant", "conducting of search" and "conclusion of search". Each of these are used in specific context and should be understood so. The law itself uses these words with different meanings and purposes and the Department's argument that all of them or many of them would mean the same will render understanding of the Act in an overlapping manner and also such interpretation would render reading of the provision in an irrational manner. Rational and harmonious interpretation giving meaning to each and every expression is preferable to an attempt by the Department which renders use of different words meaningless.
12. We have considered the rival submissions, perused the evidence on record and applied the ratio of the decisions relied on by the parties. The crux of the dispute revolves around the jurisdiction of the Tribunal to entertain the impugned appeal of the assessee. The issue before us is fairly simple and does not involve high complication canvassed by the parties. Section 253 deals with the scope and the jurisdiction of the Tribunal to deal with the appeals before it. A perusal of Section 253(1)(b) brings out an incontrovertible, unambiguous and clear conclusion that in cases where the search is initiated after 30th June, 1995, and before 1st Jan., 1997, the appeal against the block assessment framed by the AO in such cases shall lie with the Tribunal. These dates are mentioned in the section itself and do not require any complex process of discovery or interpretation. In contra-distinction, in cases where the search is initiated after 1st Jan., 1997, the appeal against the block assessment order framed by the AO shall lie with the CIT(A) in terms of Section 246(1)(k). Hence, there is no confusion insofar as the provision of law is concerned.
13. That takes us to the next two questions as to what is the meaning of "initiation" and when exactly the "initiation" of search took place in this case. The word "initiation" in the ordinarily sense means the very beginning of a process. The Madras High Court in the case of Artisan Press Ltd. v. ITAT and Anr. (1958) 33 ITR 670 (Mad) has held "to initiate" means "to originate" or "to take the first step".
14. The Calcutta High Court has held in the case of Nilesh Himani v. CIT and Ors. (1999) 239 ITR 517 (Cal) at p. 522 that "such proceeding was initiated when the search warrant was signed". The Kerala High Court has held in the case of T.O. Abraham and Co. and Anr. v. ADI (Inv) (1999) 238 ITR 501 (Ker) at p. 504 that "the execution means only completion, conclusion or implementation of the authorisation and not the date of issue of authorisation". Further, the same Kerala High Court in T.O. Alias v. Asstt. CIT; (1999) 238 ITR 335 (Ker) has held that "in all cases where the search is initiated prior to 1st Jan., 1997, the jurisdiction would lie with ITAT". In the case of Nirmal Ghosh Bag v. Dy. CIT (2002) 77 TTJ (Cal) 869 : (2002) 82 ITD 788 (Cal) the Calcutta Bench of the Tribunal has come to the conclusion that "initiation means the first action taken and would not mean end result of the action taken under the authorisation". The Bangalore Bench of the Tribunal held in the case of G. Dharmichand Jain (supra) that "issue of authorisation by the DIT would amount to initiation of search."
15. All these decisions support the view canvassed by the learned counsel that "initiation" commences with issue of authorisation by the DIT. On the other hand, the learned Departmental Representative has not pointed out any decision in support of the contention of the Department. Further, the Department itself in many cases of penalty has contended that initiation of penalty means even a mention in the order sheet initiating the penalty would be sufficient and notice of penalty issued later is only a communication of initiation. However, the same argument strangely is opposed in this case.
The above case law and arguments enable us to come to the conclusion that "initiation of search" commences with the "issue of authorisation" by the authorities.
16. Adverting to the second question as to when the search was initiated in this case, we find that warrant of authorisation to search the premises of the assessee was issued by the DIT, Bangalore, on 30th Dec., 1996. This fact is undisputed as the same is evidenced by the panchnama issued by the Department. We had to rely on the panchama though the warrant issued by the DIT, Bangalore, would have been a better evidence to rely on. When the Bench sought for the warrant and the related records to be produced for perusal, the same was 'not produced for the reasons best known to the Department. However, we are not handicapped by such non-production of the evidence, as the date of issue of authorization is not disputed by the Department. Hence, we proceed to decide the case based on the records and material available, before us. The conclusion would be that the search is deemed to have been initiated on 30th Dec., 1996, a date being prior to 1st Jan., 1997. Therefore, we hold that the Tribunal has valid jurisdiction in terms of Section 253(1)(b) to hear the appeal. The said issue can also be looked at from another angle. For that purpose, we refer to the following relevant extracts of Section 253(1)(a), 253(1)(b) and 253(1)(c) of the Act :
"253(1) Any assessee aggrieved by any of the following orders may appeal to the Tribunal against such order -
(a) an order passed by a Dy. CIT(A) before the 1st day of October, 1998, or, as the case may be, a CIT(A) under Section 154, Section 250, Section 271, Section 271A or Section 272A; or
(b) an order passed by an AO under Clause (c) of Section 158BC, in respect of search initiated under Section 132 or books of account, other documents or any assets requisitioned under Section 132A, after the 30th of June, 1995, but before the 1st day of January, 1997; or
(c) an order passed by a CIT under Section 12AA or under Section 263 or under Section 272A or an order passed by him under Section 154 amending his order under Section 263 or an order passed by a Chief CIT or a Director-General or a Director under Section 272A".
The aforesaid section provides that an assessee aggrieved by any of the orders specified in Clauses (a), (b) and (c) of Sub-section (1) of Section 253 can prefer appeal before the Tribunal. Clause (a) of Sub-section (1) of Section 253 refers to orders passed by the Dy. CIT(A) or the CIT(A), as the case may be, under Sections 154, 250 and 271, etc. Further, Clause (c) of Sub-section (1) of Section 253 refers to orders passed by the CIT under Section 12AA or 263 or 272A, etc. The contents of Clause (b) of Sub-section (1) of Section 253 are on a slightly different footing in so much as that although the said section refers to an order passed by the AO under Clause (c) of Section 158BC but it is circumspect with the further condition that the search in the said case should have been initiated after 30th June, 1995, but before 1st Jan., 1997. In other words, on one hand, under the provisions of Clauses (a) and (c) the only requirement is the passing of an order by the relevant authority thereby vesting a right to the assessee to appeal before the Tribunal. On the other hand, by way of Sub-clause (b) the appeal provisions are triggered not only by the passing of the order by the AO but is also coupled with additional requirement that the search resulting in assessment should have been initiated between 30th June, 1995 and 1st Jan., 1997. Therefore, the issue of jurisdiction to entertain the appeal in terms of Clause (b) is not only dependent on the passing of the order by the AO but is also required to be decided vis-a-vis the date of initiation of search. In this manner, the appeal provisions envisaged under Clause (b) of Sub-section (1) of Section 253 are on a different footing. It is in this light that the decision of the apex Court in the case of CIT v. Bikaji Dadabhai & Co. (1961) 42 ITR 123 (SC), which is vehemently canvassed before us by the learned Departmental Representative, needs to be read and understood. From this angle also, in our considered view, the present appeal of the assessee is within the four corners of Section 253(1)(b) and enjoin the Tribunal to entertain the same. Accordingly, the appeal is maintainable.
17. Now, we may refer to various submissions made by the counsel with regard to the issue of limitation and technical objection vis-a-vis the impugned order of the AO. The learned counsel submitted that the notice issued under Section 158BC dt. 13th Jan., 1997, is bad in law inasmuch as :
(a) the AO has issued the notice without himself satisfying that there was a valid search under Section 132.
(b) it was issued even prior to conclusion of the search.
(c) it does not mention the block period or assessment years involved.
(d) it does not mention under what status the assessee was supposed to file the returns.
(e) it is also not properly addressed as the same is not addressed to the principal officer of the company as required under Section 282(2) of the Act.
18. For the sake of convenience the notice issued by the Department is extracted herein :
"NOTICE UNDER Section 158BC OF THE IT ACT, 1961 PAN/GIR: W-3/SR 6 Block Period 1986-87 to 1996-97 Income Tax Office Office of the Dy. CIT(Asstt.) Special Range 6, 28, Infantry Road, Bangalore.
Dated 13/1/1997 To M/s Wipro Finance Ltd., Sheista Centre, No. 5 Papanna Street, St. Mark's Road Cross, Bangalore 1 In pursuance of the provisions of Section 158BC of the IT Act, 1961, you are requested to prepare a true and correct return of your total income including the undisclosed income in respect of which you as Individual/HUF/Firm/ Company/AOP/body of individuals/local authority are assessable for the block period mentioned in Section 158B(a) of the IT Act, 1961.
The return should be in the prescribed Form No. 2B and be delivered in this office within 16 days of service of this notice, duly verified and signed in accordance with the provisions of Section 140 of the IT Act. 1961.
Seal of the assessing officer.
Sd/- K. Padmanabhachari Dy. CIT (Asst.) Spl. Range-6, Bangalore"
In the said notice, block period has been mentioned as 1986-87 to 1996-97.
From this it is not clear whether the said period refers to previous years or assessment years.
19. Section 158B(a) as it then stood is as under:
"(a) "block period" means the previous years relevant to ten assessment years preceding the previous year in which the search was conducted under Section 132 or any requisition was made under Section 132A, and includes, in the previous year in which such search was conducted or requisition made, the period up to the date of commencement of such search or, as the case may be, the date of such requisition."
In terms of the section, the block period consists of not only ten previous years preceding, but also includes period-up to the date of commencement of search. The notice is completely silent on the period up to which the returns were to be filed. Further, if the block period mentioned is understood as previous years, then the period mentioned would go beyond the date of commencement of search. If the period is understood as assessment years, then it would not include the previous year upto the date of commencement of search. Hence, it is canvassed that the block period is not correctly mentioned having regard to the facts obtaining on record.
20. The notice in this case is not properly addressed as required under Section 282(2) of the Act. Section 282(2) reads as under --
"Any such notice or requisition may be addressed :
(a) in the case of a firm or a HUF, to any member of the firm or to the manager or any adult member of the family ;
(b) in the case of a local authority or company, to the principal officer thereof;
(c) in the case of any other association or body of individuals, to the principal officer or any member thereof;
(d) in the case of any other person (not being an individual), to the person who manages or controls his affairs".
In this case, the notice was not addressed to the principal officer of the company. Further, the notice did not mention the status in which the return is to be filed. The notice leaves it blank by mentioning".... you as individual/HUF/ Firm/Company/AOP/body of individuals/local authority....". Thus, the status in which the notice is to be complied with is not specified.
21. The learned counsel submitted that the above infirmities in the notice render the notice invalid and cannot be cured by the provisions of Section 292B of the IT Act. The gist of the various case law mentioned and the ratio are extracted herein :
(a) Y. Narayana Chetty and Anr. v. ITO and Ors. (1959) 35 ITR 388 (SC):
"The notice prescribed by the Section 34 cannot be regarded as a mere procedural requirement; it is only if the said notice is served on the assessee as; required that the ITO would be justified in taking proceedings against him. If no notice is issued or if the notice issued is shown to be invalid then the validity of the proceedings taken by the ITO without a notice or in pursuance of an invalid notice would be illegal and void."
(b) CIT v. Kurban Hussain Ibrahimji Mithibowala (1971) 82 ITR 821 (SC) : "It is well-settled that the ITO's jurisdiction to reopen an assessment under Section 34 depends upon the issuance of a valid notice. If the notice issued by him is invalid for any reason the entire proceedings taken by him would become void for want of jurisdiction. In the notice issued under Section 34 the ITO sought to reopen the assessment of the assesses for the asst. yr. 1948-49 but in fact he reopened that assessment of the year 1949-50. Hence, in our opinion, the High Court was right in holding that the notice in question was invalid and as such the ITO had no jurisdiction to revise the. assessment of the assessee for the year 1949-50".
(c) CIT v. Ishwar Singh & Sons (1981) 131ITR 480 (All): "On the facts found by the Tribunal it is clear that the notice under Section 148 was issued to an entity, which was, as a matter of fact, non-existent and was at any rate different from the entity which filed the return in response to that notice, The notice had been issued to Sardar Arjun Singh, individual and the return, was filed by Sardar Sampuran Singh, Karta of his HUF--The two are absolutely distinct entities, in law, as also, as a matter of fact, as no notice had been issued to it under Section 148 of the Act. We have already indicated above that the issue of notice under Section 148(1) is the condition precedent to the validity of an assessment under Section 147. It is a jurisdictional issue and unless such a notice is issued the ITO does not get jurisdiction to make an assessment, on a particular assessee. In this view of the matter, in our opinion, the Tribunal has been right in holding that the assessment in question was not valid in law."
(d) Lala Madan Lal Agarwal v. CIT (1983) 144 ITR 745 (All) : "It is now well-settled, and we do not consider it necessary to advert to numerous authorities in this regard cited at the Bar, that issuing of a valid notice to the assessee under Section 148 of the IT Act within the period specified under Section 149 of the Act is a condition precedent to the validity of any assessment to be made, against such assessee under Section 147 of the Act. Accordingly, where no such notice has been issued or if the notice issued is not valid or the same has not been served on the assessee in accordance with law, it will not be possible to sustain the eventual assessment made under Section 147 on the basis of such notice. We may also take it that where the notice issued to an assessee is vague, it would not be possible to rely upon it to sustain an assessment made under Section 147 of the IT Act."
(e) CIT v. Thayaballi Mulla Jeevaji Kapasi (Decd.) (1967) 66 ITR 147 (SC): In this case the Hon'ble Supreme Court referred to its earlier decision in the case of Narayana Chetty and Anr. v. ITO (supra) and held as under :
"Service of notice prescribed by Section 34 of the IT Act, for the purposes of commencing proceedings for reassessment, is not a mere procedural requirement, it is a condition precedent to the initiation of proceedings for assessment under Section 34. If no notice is issued or if the notice issued is shown to be invalid, then the proceedings taken by the ITO, without, a notice or in pursuance of an invalid notice, would be illegal and void (See Narayana Chetty and Anr. v. ITO)".
(f) P.N. Sasikumar and Ors. v. CIT (1988) 170 ITR 80 (Ker):
"We have already held that the issue and service of a notice under Section 148 is a condition precedent or a matter of jurisdiction. In that view, before assessing an "AOP" as enjoined by Section 282(2)(c) of the IT Act, the notice should be addressed to the principal officer or a member thereof. Admittedly, it has not been done in this case. That means, there was no notice to the "AOP" which was assessed to tax. We are of the view that it is a case where "no notice" was sent to "the assessee", the "AOP" as enjoined by law. The entire proceedings are, in the circumstances, void and illegal and totally without jurisdiction. Such a fundamental infirmity cannot be called a "technical objection" or a mere "irregularity" and such vital infirmity cannot be cured or obliterated by relying on Section 292B of the IT Act."
22. The learned counsel further submitted that the search in this case was concluded on 28th Feb., 1997, at 8 p.m. as mentioned in the Panchnama issued by the Department and found at p No. 143 paper book 1. Accordingly, the notice under Section 158BC, if any, ought to have been issued only thereafter. In this case the notice is issued on 13th Jan., 1997, even when the search was in progress and not concluded. This, according to him, is a premature notice and an invalid one. Section 158BC reads :
"158BC. Where any search has been conducted under Section 132 or books of account, other documents or assets are requisitioned under Section 132A, in the case of any person, then -
(a) the AO shall -
(i) in respect of search initiated or books of account or other documents or any assets requisitioned after the 30th day of June, 1995, but before the 1st day of January., 1997, serve a notice to such person requiring him to furnish within such time not being less than fifteen days."
The words used in the section are "where any search has been conducted" clearly imply that notice should, be issued only after the search is conducted and not prior to that. The learned counsel argued that prior to issue of notice the AO must convince himself of the desirability or the requirement for issue of notice. The AO should convince himself by proper application of mind that there was a valid search, such a search has at least on a prima facie basis has material or valuables which could be termed as undisclosed income assessable in the hands of the person who has been searched. The Act provides two sections, viz., 158BC where the assessment is in the hands of the person searched and another section, viz., 158BD where material found in another person's search is assessed in the hands of the third party. Hence, unless the search is complete and the material seized and other details are obtained and gone through by the AO, no notice could be issued. Further, the AO should record reason for issue of notice. In the case of a notice issued prior to completion of search, all these requirements might not have been complied with and definitely there will be no application of mind,
23. The learned counsel further contended that all the decisions which are. relevant for concluding the validity of a notice under Section 148 are also relevant to judge the validity of a notice under Section 158BC, In this, regard, he relied on the decision of the Hon'ble Supreme Court in the case of CIT v. Kurban Hussain Ibrahimji Mithiborwala (supra) in which it has been held that it is well-settled that the ITO's jurisdiction to reopen an assessment under Section 34 of the IT Act, 1922, depends upon the issuance of a valid notice. The learned counsel also relied on the decision of the Hon'ble Supreme Court in the case of Y. Narayana Chetty and Anr. v. ITO (supra) wherein it has been held that the notice prescribed by Section 34 of the IT Act, 1922, for the purpose of initiating reassessment proceedings is not a mere procedural requirement; the service of the prescribed notice on the assessee is a condition precedent to the validity of any reassessment made under Section 34. If no notice is issued or if the notice issued is shown to be invalid, then the proceedings taken by the ITO without a notice or in pursuance of an invalid notice would be illegal and void. The learned counsel further relied on the decision of Allahabad Bench of the Tribunal in the case of Verma Roadways v. Asstt. CIT (2001) 70 TTJ (All) 728 : (2000) 75 ITD 183 (All) and the decision of the Bangalore Bench of the Tribunal in a set of appeals in IT(SS) A No. 51 (Bang) 1998 and 13 other appeals disposed in a common order in the cases of Wafir Lodge, Bellary v. Asstt. CIT (Inv.) Circle I, Bangalore. The learned counsel further contended that the assessee-company was incorporated only on 2nd Jan., 1992, and the first previous year ended on 31st March, 1992. However, ignoring this fact or totally unaware, the AO has issued the impugned notice mentioning the block period as 1986-87 to 1996-97. Thus, the notice pertains to a period when the assessee was not even in existence. This itself bears ample testimony for absence of application of mind or reason before issue of notice. In a case of an identical circumstances, Allahabad "A" Bench of the Tribunal in the case of VVS Alloys Ltd. v. Asstt. CIT (2000) 68 TTJ (All) 516 has held the notice and the assessment as void ab intio.
24. The learned counsel submitted that the search in this case was not a valid search as envisaged under Section 132 of the IT Act. The requirements of Sub-clauses (a), (b) and (c) of Section 132(1) could not be satisfied on an objective analysis based on the facts obtaining on record. It was submitted that the assessee is an existing assessee and has always complied with all the notices in all proceedings. Even as late as on 2nd Dec., 1996 notice under Section 143(2) was issued seeking innumerable number of details and the case was fixed on 13th Dec., 1996, and all the details were submitted by the assessee as could be made out from the notice and other correspondence enclosed in paper book IV(1) at p. Nos. 31 to 36. Hence, the conditions mentioned in Sub-clauses (a) and (b) of Sub-section (1) 132 are not complied with. Insofar as Sub-section (c) is concerned, verification of all the material including assessment order indicates that it was not a case for any seizure of valuable or money, bullion, etc. To verify the veracity and validity of search, learned counsel requested for summoning of the search records including satisfaction note. He further contended that the Tribunal has the requisite authority and responsibility to satisfy the validity of search when the block proceedings are questioned. In support, he relied On the decision in the case of Dr. A.K. Bansal v. Asstt. CIT (2000) 67 TTJ (All)(TM) 721 : (2000) 73 ITD 49 (All)(TM). He made an oral as well as written request to summon the records of search and assessment as well as reason recorded by the AO. On non-furnishing of records by the. Department, learned counsel submitted that the decision of the Karnataka High Court in the case of Southern Herbals Ltd. v. Director of IT (Inv) and Ors. (1994) 207 ITR 55 (Kar) at p. 62 extracted herein :
"Disclosure of the materials or the information to the persons against whom the action under Section 132(1) is taken is not mandatory, because the very disclosure would affect or hamper the investigation. Further, many a time, the source of information could easily be inferred from the said material and it is not in the interest of the public to reveal the source through which the authority received the information relevant to the action under Section 132(1). Information would have been collected by the promise of confidentiality; even otherwise, to avoid embarrassment to the persons conveying, the information, the source cannot be revealed. When investigation is in progress and in the meanwhile, persons against whom action is proposed come to know of the material on which the investigation is based, there is every likelihood of further manipulative devices being adopted by such persons to give a different orientation to the relevant facts. The person against whom the action is to be taken will be given all the relevant facts and materials on which further action is proposed after investigation is completed. "Search and seizure" is only an initial step in the enquiry to be held regarding tax evasion. At this stage, its purpose is to get hold of evidence bearing on the tax liability of a person, which the said person is suspected to have been withholding from the assessing authority and to get hold of the assets representing income believed to be undisclosed income. The stage for disclosure of the materials is reached only when the Revenue resolves to proceed to make an appropriate order imposing tax liability or penalty, etc. and at that stage, all relevant materials from which the liability of the taxpayer is sought to be inferred shall have to be disclosed."
compels the Department to furnish the details sought for and such non-
furnishing should enable the Tribunal to draw adverse inference on the Department.
25. The next ground taken by learned counsel was that the return filed by the assessee on 30th April, 1997, was a return under protest and the AO has not taken cognizance of the accompanying objections and alternative computation of income filed. Consequently, the assessment is invalid as it has not acted upon properly.
26. The learned counsel further submitted that the assessment made in this case on 29th Jan., 1999, is barred by limitation for two different reasons. :
(a) The first reason is that Section 158BC(b), extracted herein :
"the AO shall proceed to determine the undisclosed income of the block period in the manner laid down in Section 158BB and the provisions of Section 142, Sub-sections (2) and (3) of Section 143, Section 144 and Section 145 shall, so far as may be, apply."
requires the AO to issue notice under Section 143(2) before completion of any assessment under Section 158BC, whereas Section 143(2) mentions that no notice shall be issued after the expiry of 12 months from the end of the month in which the return is furnished. In this case notice under Section 143(2) has been issued only on 6th Oct., 1998, whereas valid notice would have been issued only up to 30th April, 1998. The notice under Section 143(2) was clearly issued beyond the time prescribed under the Act. Hence, the assessment is invalid.
(b) The second reason was that the initiation of the search in this case was oh 30th Dec., 1996, when the warrant of authorisation was issued by the DIT to search the premises of the assessee. On the basis of these dates, the assessment should have been completed within one year from the end of the month in which the search was concluded as per Section 158BE(1)(a). Section 158BE(1)(a) reads :
"within one year from the end of the month in which the last of the authorisations for search under Section 132 or for requisition under Section 132A, as the case may be, was executed in cases where a search is initiated or books of account or other documents or any assets are requisitioned after the 30th day of June, 1995, but before the 1st day of January, 1997.
Explanation. 2 : For the removal of doubts, it is hereby declared that the authorisation referred to in Sub-section (1) shall be deemed to have been executed -
(a) in the case of search, on the conclusion of search as recorded in the last Panchnama drawn in relation to any person in whose case the warrant of authorisation has been issued."
27. In this case admittedly the search was concluded on 28th Feb., 1997, as mentioned in the Panchnama at paper book I, p. 143. Consequently, the assessment ought to have been completed on or before 28th Feb., 1998, However, the assessment herein was completed on 29th Jan., 1999, which is clearly barred by limitation. The learned counsel went on to submit On the merits of additions, However, the learned Departmental Representative vehemently objected to the continuation of hearing of appeal on merit and other issues other than the issue of limitation. The learned Departmental Representative Strongly submitted that if the Tribunal decides the issue on any ground other than jurisdiction and limitation, the same would be detrimental to the interests of the Revenue and the Revenue will be put into undue hardship inasmuch as if this order is vacated by the High Court and remitted back to CIT(A), then the Department would suffer irreparably as any decision on merits of the issues would influence the CIT(A). In this regard he referred to paras 13 to 16 of his written submission dt. 3rd Jan., 2003, which are extracted herein :
"(13) As submitted earlier, the appellant has preferred the present appeal, on the footing that the search in their case is initiated after 30th June, 1995, but before 1st Jan., 1997 and, thereby the time-limit of one year as provided under Section 158BE(1)(a) of the Act is applicable. This position is disputed by the Revenue. In those cases, where the search is initiated after 30th June., 1995, but before 1st Jan., 1997, an appeal would lie, in terms of Section 253(1)(b) of the Act before the Tribunal. Now, in the present case, when the issue of maintainability of the present appeal, as raised by the Revenue, is dealt with by this Hon'ble Tribunal and even if it is held that the provisions of Section 158BE(1)(a) of the Act would be applicable and consequently rendering the assessment barred by time, in such a situation, it would be wholly, impermissible in law to adjudicate the other issues on merits. Normally, in an appellate forum, when the plea of limitation and jurisdiction is accepted holding the order under appeal to be bad in law either was time-barred or without jurisdiction, the appellate forum may not be precluded from adjudicating the other issues on merits. But the present case stands on a different footing and having regard to the scheme of the provisions of Sections 246A(1)(k) and 253(1)(b) of the Act carving out the jurisdictions, it is not permissible to adjudicate the other issues on merits, for the reasons elaborated hereinafter.
(14) It is submitted that on any decision being rendered by this Hon'ble Tribunal on the issue of maintainability and the applicability of the provisions of Section 158BE(1)(a) or 158BE(1)(b) of the Act to the appellant's case and if it be held that the provisions of Section 158BE(1)(a) of the Act are applicable to the appellant's case on the position that search can be said to have been initiated after 30th June, 1995, but before 1st Jan., 1997, the decision so rendered would be susceptible for review before the higher forum. When such decision so rendered on the question of applicability of the provisions of Section 158BE(1)(a) of the Act are assailed before the higher forum, and if it is held that the provisions of Section 158BE(1)(a) of the Act is not applicable and that the search can be said to have been initiated only after 1st Jan., 1997, in such a situation, the block assessment framed would not be liable to be set aside and it will revive. However, in that situation, the other findings of the Tribunal rendered on merits cannot be gone into and this position is due to the fact that if the provisions of Section 158BE(1)(b) are held to be applicable on the ground that search is initiated after 1st Jan., 1997, the adjudication of any issue on merits, in terms of Section 246A(1)(k) of the Act provides that an appeal against a block assessment order in those cases where search is initiated after 1st Jan., 1997, would lie before the CIT(A). In this view of the matter, when the provisions of Section 246A(1)(k) of the Act provide for adjudication of the legality of the assessment on merits by the CIT(A), In an appeal preferred before such authority, the decision rendered by the Tribunal on merits in the present case cannot be subject-matter of consideration before the higher forum. In other words when it is held by the higher forum that the provisions of Section 158BE(1)(a) of the Act govern the appellant's case and the search can be said to be initiated after 1st Jan., 1998, then the assessment would revive and since the appeal is not decided by the authority envisaged under the provisions of Section 246(1)(k) of the Act, the decision of the Tribunal rendered on merits cannot be gone into at all. In view of this peculiar position of the jurisdiction involved in the present case, it is submitted that the issue on merits cannot be gone into at this stage by this Hon'ble Tribunal. At this stage, it may also be mentioned that in a recent case in the case of Gagandeep Prathisthan (P) Ltd. and Ors. v. Mechano and Anr. AIR 2002 SC p. 204, the Supreme Court has held that the preliminary issue of maintainability should be considered before proceeding with appeal any further. In that context, the Supreme Court has held as under:
6. In view of the peculiar facts of this case without going into the merits of the contentions raised by the counsel for the appellants, we think it is just and fair that we should not at this point of time interfere with the impugned order though the High Court could have avoided passing such orders in proceedings where the maintainability itself was being seriously questioned. Be that as it may, we at this stage think it appropriate that the High Court should Consider the question of condonation of delay and the objection of the appellants herein in regard to maintainability of the appeal first, before proceeding with the appeal any further. We also think it to be just and proper that any further interim orders if necessary in the appeal before the High Court in regard to the suit property should be made only after deciding the question of delay and maintainability of the appeal and the order already made should be confined to the appointment of a Receiver and filing of his report only, meaning thereby that the impugned order be confined to the appointment of Receiver for the purpose of filing his report as directed by the Court and nothing beyond that at this stage.
It is reiterated that in the present case, in view of the distinct demarcation of jurisdiction for adjudication of the appeals as between the CIT(A) and this Hon'ble Tribunal in terms of Sections 246A(1)(k) and 263(1)(b) of the Act, as elaborated earlier, the other issues on merits do not require to be gone into. At this stage, it may be relevant to mention that in the case of Shri G. Dharmichand Jain v. Dy. CIT (SS) A. No. 4/B/99, dt. 3rd May, 2001, this Hon'ble Tribunal has adjudicated other issues on merits in the said case after holding that the assessment was liable to be set aside as being barred by time. In that, the search is said to have been initiated before 1st Jan., 1997 and as such the provisions of Section 258BE(1)(a) of the Act would be applicable. In order to so decide the issues on merits, this Hon'ble Tribunal has held thus :
'while quashing the block assessment order on technical grounds, we are also supposed to make out comments on the merits of the case, which will be operative only in case of restoration, if any, of the block assessment order by the higher forum.' Thus, it may be noticed from the foregoing narration ,in the order that the Tribunal has proceeded to consider other issues on merits on the ground that in case of restoration of the block assessment by the higher forum, the other findings on merits as rendered by the Tribunal can be gone into. It is submitted with due respect that in the event of restoration of block assessment, as submitted earlier, the other issues, relating to merits cannot be gone into inasmuch as the Tribunal could not have gone into the merits of the assessment in the appeal preferred, since, the issues on merits, on restoration, can only be gone into by the CIT(A), in an appeal preferred in accordance with law before such authority. Hence, this is not a normal case wherein the appellate forum can go into both the question of maintainability, jurisdiction as well as the merits. In other words, the restoration or revival of the assessment held to be barred by time by the Tribunal would mean that the block assessment stands and as such by virtue of the provisions of Section 246(1)(k) of the Act providing for an appeal against such assessment to the CIT(A), the Tribunal cannot go into the question of merits. Thus, it may be noticed that in the order passed in the case of G. Dharmichand Jain v. Dy. CIT, there is inherent contradiction, in that, on restoration of block assessment, the question of dealing with the other issues on merit will not arise at all.
(15) In the light of the foregoing position, it is submitted that in the present appeal preferred by the appellant-assessee, the question of dealing with the issues on the merits of the block assessment does not arise. As such, the present appeal may be heard only on the issue of. maintainability, in that, as to whether the appellant's case, for the purpose of conclusion of block assessment, is governed by the provisions of Section 158BE(1)(a) or 158BE(1)(b) of the Act.
(16) On the foregoing issue of maintainability as to whether the provisions of Section 158BE(1)(a) or (1)(b) of the Act is applicable, it is submitted that in the present case, the provisions of Section 158BE(1)(b) of the Act alone are applicable." .
28. On this plea of the learned Departmental Representative, we find ample force and, therefore, we do not proceed to adjudicate on the merits of various additions, disallowances, etc, made by the AO. Hence, we only proceed to adjudicate on the issues in relation to limitation of making the impugned assessment in so much as that the same is intertwined with the issue of maintainability of the appeal, which we have already adjudicated in para 16 (supra). Hence, although the assessee's counsel had made elaborate arguments in relation to the issue of validity of notice, validity of search, etc. as discussed above, we refrain from giving any opinion on the same.
29. The search in the present case is deemed to have been initiated on 30th Dec., 1996, as concluded by us while dealing with the issue of maintainability of appeal in para 16 (supra). Consequently, Section 158BE(1)(a), which provides that the assessment should be completed within, 1 year from the end of the month in which last of the authorisations for search under Section 132 was issued, would be applicable. Having regard to the Expln. 2 and Section 158BE(1)(a) the assessment in this case ought to have been completed on or before 28th Feb., 1998. However, the assessment under Section 158BC in this case has been completed on 29th Jan., 1999, which is clearly beyond the period of limitation provided under the Act. This is the correct position on limitation even according to the facts accepted by the learned Departmental Representative as per his written submissions. Accordingly, we hold that the assessment is barred by limitation and is accordingly set aside.
30. In the result, the appeal is treated as allowed as above.