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Income Tax Appellate Tribunal, “C” Bench, Mumbai
Before: Shri Ravish Sood & Shri N.K.Pradhan
O R D E R
PER RAVISH SOOD, JM
The present appeal filed by the revenue is directed against the order passed by the CIT(A)-3, Nasik (Camp Office: Thane), dated 30.03.2017, which in turn arises from the assessment order passed by the A.O under Sec.143(3) of the Income Tax Act, 1961 (for short ‘I.T Act’), dated 23.03.2015 for A.Y. 2012-13. Further, the assessee is also before us as a Cross Objector. The revenue has assailed the order of the CIT(A) by raising before us the following grounds of appeal :
“1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the disallowance made ,on account of bogus purchases of Rs. 78,48,076/- without appreciating the findings of the A.O on this issue in his remand report that the assessee has f ailed to produce direct confirmation from the third parties.
2. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the disallowance of transport charges of Rs. 38,54,627/- without appreciating the findings of the AO. on this issue in his remand report that the assessee has failed to produce direct confirmation from the third parties. 2.1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the disallowance of transport charges of Rs.38,54,627/- in view of the provisions of section 194C(6), without appreciating the findings of' the A.O. that the addition was made u/s 37(1) and 69C as well.
3. The order of the CIT(A) may be vacated and that of the Assessing Officer may he restored.
4. The assessee craves leave to add, amend, alter or delete any ground of appeal.”
On the other hand the assessee as a cross objector has raised the following grounds :
“I. Addition u/s. 69C of Rs.78,48,076/- as Unproved Purchases: 1. The Learned CIT(A) has correctly deleted the addition made by the Assessing Officer towards unproved purchases u/s.69C of Rs.78,48,076/- as the respondent had complied P a g e | C.O.301/Mum/2018 AY. 2012-13 DCIT, C-3 Vs. M/s Pawan Estates with all the details such as bank statement, purchases bills which were tally with the confirmations, and same was remanded to the Assessing Officer and it was accepted by the Assessing Officer in his remand report dt.23/03/2017, hence, the deletion of addition of Rs.69C is may be confirmed.
2. Without prejudice to the above, all payments were made through banking channels from regular source of income, hence provision of s.69C is not applicable to respondent, deletion of addition may be confirmed. II. Disallowance of Transport Charges of Rs.38,54,627/- 3. The Learned CIT(A) has correctly deleted Transport Charges of Rs.38,54,627/- as the provision of section 194C (6) is applicable to the respondent for non-deduction of TDS as the parties to whom transport charges paid was in the business of plying, hiring and leasing of goods, and respondent had submitted confirmations, copies of transport bills, copies of PAN. Therefore, view taken by the CIT(A) for deletion of Transport Charges is correct and same may be confirmed. 4. Without prejudice to the above, as respondents has filed all the required details, neither s.37, 69C nor s. 40(a)(ia) applied to the respondent on facts of the case. Hence the order of the CIT(A) as deletion of addition may be confirmed.”
2. Briefly stated, the assessee firm which is engaged in the business of a builder and a developer had e-filed its return of income for A.Y. 2012-13 on 30.09.2012, declaring total income at Rs.20,24,144/-. The return of income filed by the assessee firm was processed as such under Sec. 143(1) of the I.T Act. Subsequently, the case of the assessee was selected for scrutiny assessment under Sec. 143(2).
During the course of the assessment proceedings the A.O in order to verify the genuineness and veracity of certain purchase transactions and expenses viz. JCB rent, advertising expenses and architect fees issued notices under Sec.133(6) to the respective parties. In certain cases the notices were returned back unserved by P a g e | C.O.301/Mum/2018 AY. 2012-13 DCIT, C-3 Vs. M/s Pawan Estates the postal authorities with the remarks ‘not found’. Insofar the remaining cases where the notices were served upon the parties, no reply was received by the A.O. The A.O brought the aforesaid fate of the notices issued u/s 133(6) to the notice of the assessee and called upon it to place on record the confirmations of the said parties along with the documentary evidence which would support the genuineness of the transactions under consideration :
Sr. No. Name of the Party Nature of Amount Remarks Transaction 1. Dhiren Building Material Purchases 766014 No submission Suppliers 2. M/s Diya Enterprises Purchases 2871367 Assessee furnished only a self attested copy of the ledger extracts of party in its books and Xerox copies of bills. 3. M/s Harish Building Purchases 635788 Assessee furnished only a self Material Suppliers attested copy of the ledger extract of party in its books.
M/s Himanshi Purchases 1023887 Assessee furnished only a self Enterprises attested copy of the ledger extracts of party in its books.
M/s Jai Hanuman Purchases 244093 Assessee furnished only a self Enterprises attested copy of the ledger extract of party in its books and Xerox copies of bills. 6. M/s Satec Envir Purchases 108161 Assessee furnished only a self Engineering (India) Pvt. attested copy of the ledger ltd. extract of party in its books and Xerox copies of bills. 7. M/s D.B. transport JCB Rent 388766 Assessee furnished only a self attested copy of the ledger extract of party in its books. 8. M/s Diya Enterprises JCB Rent 272313 Assessee furnished only a self attested copy of the ledger extract of party in its books sand Xerox copies of bills. 9. M/s Om Sai Enterprises JCB Rent 110860 Assessee furnished only a self (Rambaug) attested copy of the ledger P a g e | C.O.301/Mum/2018 AY. 2012-13 DCIT, C-3 Vs. M/s Pawan Estates extract of party in its books and Xerox copies of bills. 10. M/s Form Space N Architect Fees 773722 Assessee furnished only a self Design Architects attested copy of the ledger extract of party in its books and Xerox copies of bills. 11. M/s Perfect Geotechnics Advertisement 653105 Assessee furnished only a Pvt. Ltd. unsigned cop of the ledger extract of party in its books and Xerox copies of bills. 7848067 In compliance to the aforesaid directions of the A.O, the assessee furnished part details vide his submissions dated 23.03.2015 in inward tapal of the department. However, the A.O not being satisfied with the documentary evidence placed on record by the assessee declined to accept the same for the following reasons:
“1. On perusal of the details placed on record the following defects are noted: a) In respect of persons mentioned at Sr. Nos. 2 to 11, the assessee itself has furnished the ledger extract as on 31.03.2012. In the absence of any direct confirmation from the parties concerned the transactions by assessee remained unproved. b) Since none of these documents were signed by the parties concerned, therefore the authenticity of the same could not be verified. c) The persons concerned have not replied to notices issued under section 133(6).
Assessee's submissions provide only a list of parties, ledgers accounts, amounts paid. The inquiries conducted proved that the notices were either returned un-served or not replied to. As such the assessee was required to furnish evidences of total purchases claimed in the return which it failed to furnish.
3. The assessee despite being given an opportunity to furnish all the relevant details and explanations and evidences to support the claim and its allowability, except the above referred incomplete details and explanations has not justified the claim and its allowability.”
P a g e | C.O.301/Mum/2018 AY. 2012-13 DCIT, C-3 Vs. M/s Pawan Estates On the basis of his aforesaid observations, the A.O holding a conviction that as the assessee had failed to substantiate the genuineness and veracity of the aforementioned transactions pertaining to purchase of goods and claim of expenses stated to have been incurred in the course of its business, therefore, characterised the same as an unexplained expenditure u/s 69C of the I.T Act and made an addition of Rs.78,48,076/- in the hands of the assessee.
4. Apart there from, in the course of the assessment proceedings it was also observed by the A.O that the assessee had claimed to have paid transport charges to the tune of Rs. 38,54,627/- to various transport operators on which no TDS was deducted. Further, as the assessee failed to substantiate the authenticity of the transport charges claimed to have been incurred to the satisfaction of the A.O, therefore, the latter disallowed the same under Sec.37(1) and Sec.69C of the I.T Act. Alternatively, it was observed by the A.O that as the assessee had failed to place on record the PAN Numbers of the contractors to whom payments were made towards hiring or leasing of the goods carriages, therefore, the provisions of Sec. 194C(6) were not applicable in its case, as a result whereof it was obligated to have deducted tax at source while making the said payments. In the backdrop of his aforesaid deliberations the A.O concluded that as the assessee had failed to deduct tax at source on the transport charges aggregating to Rs. 38,54,627/-, therefore, the said amount was liable to be disallowed under Sec.40(a)(ia) of the I.T Act.
5. The assessee being aggrieved with the assessment framed by the A.O carried the matter in appeal before the CIT(A). Insofar the addition of Rs.78,48,076/- made by the A.O on account of unproved purchases and expenditure was concerned, it was submitted by the assessee that P a g e | C.O.301/Mum/2018 AY. 2012-13 DCIT, C-3 Vs. M/s Pawan Estates the A.O had made the said additions solely on the basis that no reply was received from the parties in response to the notices issued to them under Sec. Sec. 133(6) of the I.T Act. The CIT(A) observed that the A.O had made the addition for the reason that the genuineness of the purchases could not be verified. It was submitted by the assessee before the CIT(A) that in the course of the assessment proceedings it had furnished the requisite information as was called for by the A.O viz. (i). party wise details of the suppliers with name, address and amount of transaction; (ii). labour charges paid; and (iii) the details of the transport charges. Apart there from, it was submitted by the assessee that as in the course of assessment proceedings despite best of its efforts it could obtain confirmations letters only from five parties, therefore, the A.O was requested to allow some further time for placing on record the remaining confirmations letters. It was averred by the assessee that it had vide a letter dated 26.03.2015 tried to submit the additional confirmation letters which were obtained by him with the A.O, however, as she declined to accept the same, therefore, they were submitted under inward tapal of the department. In sum and substance, it was the claim of the assessee that though it had with great difficulty collected the confirmations letters from the supplier parties, service providers and the transporters, however, the A.O had declined to accept the same and had hushed through the scrutiny proceedings and made additions in the its hands. In the backdrop of the aforesaid facts the assessee submitted before the CIT(A) the documents which were not examined by the AO, as well as placed on record the ledger accounts along with the confirmations of the remaining parties, copy of its bank account reflecting payment made to the said parties and the copies of the PAN Numbers of the said parties. The CIT(A) forwarded the exhaustive documents filed by the assessee with him to the A.O and called for a ‘remand report’. In reply, P a g e | C.O.301/Mum/2018 AY. 2012-13 DCIT, C-3 Vs. M/s Pawan Estates it was though admitted by the A.O that the bank statements and the purchase bills filed by the assessee tallied with the ledger confirmations and all the payments were found to have been made to the supplier parties through bank account, however, he objected to the admission of the documents that were filed by the assessee, for the reason that the latter despite sufficient opportunity had failed to furnish the same during the course of the assessment proceedings.
The CIT(A) after deliberating on the submissions of the A.O in his ‘remand report’ and considering the reply filed by the assessee in rejoinder to the same, observed that the A.O had made the additions for the reason that as the notices issued by him under Sec.133(6) were not complied with by the creditors, therefore, the genuineness of the purchases had remained unverified. It was observed by the CIT(A) that the assessee had during the course of the assessment proceedings, vide its letter dated 23.03.2015 and 26.03.2015 had though filed certain documents, however, as the A.O had already finalised the assessment, therefore, she had no occasion to examine the same. On the basis of the aforesaid facts, it was observed by the CIT(A) that as the assessee had earlier placed on record the ledger account confirmations from the suppliers and the professionals, therefore, the fact that the said parties had sold their goods or given services to the assessee stood proved. Apart there from, it was noticed by the CIT(A) that the A.O on being confronted with the said documentary evidence had though admittedly not given any adverse comments as regards the same and had only objected to the admission of the same for the reason that they were in the nature of ‘fresh evidence’. The CIT(A) on perusing the details submitted by the assessee observed that the purchase bills clearly revealed the details like vehicle numbers, dates, measurement of the material purchased, number of trips and the rate P a g e | C.O.301/Mum/2018 AY. 2012-13 DCIT, C-3 Vs. M/s Pawan Estates per trip etc. Further, it was observed by him that the payments made by the assessee to the said respective parties were also found reflected in the back account of the assessee. Insofar the payment made by the assessee towards JCB Rent and Architect Fees was concerned, it was observed by the CIT(A) that the ‘bills’ placed on record by the assessee clearly revealed the complete details in respect of the services availed by the assessee and no adverse inferences in respect of the same was pointed out by the A.O. Apart there from, it was also observed by the CIT(A) that the assessee had also deducted TDS on the payments made towards architect fees. In the backdrop of his aforesaid deliberations the CIT(A) did find favour with the contention advanced by the assessee as regards the genuineness of the purchase transactions and the payments made towards availing of the services which had been disallowed by the A.O and deleted the addition of Rs. Rs.78,48,076/- made by him.
As observed by us hereinabove, the assessee in order to fortify the genuineness of the transport expenses had placed on the record of the CIT(A) supporting documentary evidences viz. (i) bills for transport expenses; (ii) ledger confirmations of the third parties; (iii) bank statements reflecting payments to the parties; and (iv) copies of the PAN Cards and details of the jurisdictional A.O. On being confronted with the aforesaid documentary evidence filed by the assessee, the A.O objected to the admission of the same. However, the CIT(A) was of the view that as the assessee had submitted the details pertaining to the transport charges in March, 2015, therefore, it was not reasonable on the part of the A.O to object to the admission of the additional evidence in respect of the transport expenses. The CIT(A) after perusing the details placed on record by the assessee observed that as the assessee had given the PAN details of the parties which was also P a g e | C.O.301/Mum/2018 AY. 2012-13 DCIT, C-3 Vs. M/s Pawan Estates accepted by the A.O in his ‘remand report’, therefore, there was no violation of the TDS provisions and resultantly no disallowance of the transport charges was called for under Sec. 40(a)(ia) of the I.T. Act. In the backdrop of his aforesaid observations the CIT(A) directed the A.O to delete the addition of Rs. 38,54,627/-.
The revenue being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. Further, the assessee is also before us as a cross objector. It was submitted by the ld. Departmental Representative (for short ‘D.R’) that the CIT(A) had erred in admitting the ‘fresh evidence’ in respect of the purchase transactions, JCB rent details, architect fees and the transport charges. It was the contention of the ld. D.R that as the assessee despite having been afforded sufficient opportunity in the course of the assessment proceedings had failed to substantiate the genuineness and veracity of the purchase transactions on the basis of supporting documents, therefore, the A.O being left with no other alternative had rightly made an addition in respect of the unproved purchases and expenses of Rs.78,48,076/-under Sec.69C. Further, it was averred by the ld. D.R that as the assessee did not place on record the PAN Numbers of the transport operators, as well as had failed to substantiate the genuineness of the transport charges claimed to have been paid to them, therefore, the A.O had rightly disallowed the said transport expenses of Rs.38,54,627/-.
Per contra, the ld. Authorized Representative (for short ‘A.R’) for the assessee Dr. K. Shivaram, Senior Advocate, took us through the facts of the case relevant to the issues under consideration. Insofar the contention of the revenue that the assessee had failed to place on record documentary evidence in support of the genuineness of the purchases and the other expenses was concerned, it was submitted by P a g e | C.O.301/Mum/2018 AY. 2012-13 DCIT, C-3 Vs. M/s Pawan Estates the ld. A.R that the assessee who after persistent efforts was able to obtain the confirmations letters had tried to furnish the same with the A.O, however, as the latter had declined to accept the same, therefore, being left with no other alternative the assessee had filed the same under the inward tapal of the department. In sum and substance, it was the contention of the ld. A.R that though the assessee after obtaining the confirmation letters of the suppliers/services providers and the transporters had tried to place on record the same with the A.O, however, the latter had hushed through the assessment proceedings and had made additions in the hands of the assessee. Interestingly, it was submitted by the ld. A.R that all of the said parties under consideration were being assessed with the same A.O. Apart there from, it was further submitted by the ld. A.R that as the assessee had been carrying on regular transactions with the parties under consideration in the succeeding years i.e A.Y 2013-14, A.Y. 2014-15 and AY 2016-17, therefore, there was no question of doubting the genuineness of the transactions carried out by the assessee with the said parties during the year under consideration. Insofar the transport charges were concerned, it was submitted by the ld. A.R that the respective parties to whom the transport charges were paid were duly assessed to tax and their PAN Numbers were filed with the CIT(A). It was the contention of the ld. A.R that the CIT(A) appreciating the genuineness and veracity of the transactions under consideration had rightly deleted the additions made by the A.O. It was further submitted by the ld. A.R that the cross objections filed by the assessee were merely supportive of the order passed by the CIT(A).
We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record. Admittedly, the notices issues by the A.O under P a g e | C.O.301/Mum/2018 AY. 2012-13 DCIT, C-3 Vs. M/s Pawan Estates Sec. 133(6) to the aforementioned 11 parties pertaining to purchases/expenses aggregating to Rs.78,48,076/- were not complied with and no reply was received by the A.O from the said respective parties. In the backdrop of the aforesaid facts, the A.O had called upon the assessee to place on record the confirmations of the parties, as well as produce the ‘books of accounts’ and any other supporting evidence to prove the genuineness of the purchases made and the expenses claimed to have been paid to the aforementioned parties. Insofar the documentary evidences which were placed on record by the assessee in the course of the assessment proceedings were concerned, we find that as the same were not to the satisfaction of the A.O, therefore, for the said reason he had concluded that the same did not justify the claim of the assessee for allowability of the expenses under consideration. Apart there from, we find that the AO was of the view that as the assessee had failed to place on record the PAN Numbers of the transporters to whom transport charges aggregating to Rs. 38,54,627/- was claimed to have been paid, therefore, the relaxation from deduction of tax at source as envisaged in Sec.194C(6) could not be availed by the assessee, who was thus obligated to have deducted tax at source at the time of making the said payments. On the basis of his aforesaid observations the A.O had disallowed the transport charges under Sec. 40(a)(ia). Further, the AO also not being impressed with the authenticity of the transport charges had also disallowed the same under Sec.37 and Sec. 69C of the I.T Act.
We find from a perusal of the order of the A.O that the assessee after collecting the confirmations from the creditors had tried to furnish the same with the A.O, vide its letter dated 26.03.2015. However, as the same was not accepted by the A.O, therefore, the same was submitted by the assessee under the inward tapal of the P a g e | C.O.301/Mum/2018 AY. 2012-13 DCIT, C-3 Vs. M/s Pawan Estates department. We find that the CIT(A) after perusing the confirmations of the parties which were filed by the assessee before him had called for a ‘remand report’ from the A.O. In reply, the A.O though did not point out any infirmity in the confirmations placed on record by the assessee, and had rather only objected to the admission of the said documents which were in the nature of a ‘fresh evidence’. It emerges from the order of the CIT(A) that he had after deliberating on the material placed on record by the assessee observed, that though the confirmations/documents were furnished by the assessee vide its letter dated 23.03.2015 and 26.03.2015, however, the same could not be considered by the A.O who by that time had already finalised the assessment. In the backdrop of the aforesaid facts, the CIT(A) did not find favour with the request of the A.O that the documents filed by the assessee being in the nature of ‘fresh evidence’ may not be admitted. Rather, the CIT(A) after deliberating on the confirmations of the respective parties, and after perusing the ‘bills’ wherein the complete details of the purchase/service transactions viz. vehicle numbers, dates, measurements of the material purchased, number of trips and the rate per trip etc were discernible, was impressed with the genuineness and veracity of the transactions under consideration. Apart there from, the CIT(A) also observed that in respect of the service charges paid by the assessee to the architects the necessary TDS had also been deducted.
We have given a thoughtful consideration to the observations of the CIT(A) and find no infirmity in the same. In our considered view the assessee had tried his level best to place on record of the A.O the confirmations of the creditors, which however the latter declined to accept for the reason that the assessment had already been framed by her. The aforesaid contention of the assessee cannot be held as an P a g e | C.O.301/Mum/2018 AY. 2012-13 DCIT, C-3 Vs. M/s Pawan Estates eyewash, because it stands evidenced that the assessee vide its letter dated 26.03.2015 had on the refusal of the A.O to accept the confirmations letters filed the same under the inward tapal of the department. In the backdrop of the aforesaid facts, we find that the CIT(A) in all fairness had rightly admitted the said confirmations of the parties in the course of the appellate proceedings. Rather, the A.O on being confronted with the documentary evidence which substantiated the genuineness and veracity of the purchase transactions and the expenses claimed by the assessee to have been incurred in the course of its business, had at no stage doubted the same. In fact, the A.O had in his ‘remand report’ confirmed that the bank statements and the purchase bills tallied with the ledger confirmations. Apart there from, we find that the CIT(A) had only after necessary deliberations on the confirmations of the parties and the details discernible from the purchase bills and the expenses claimed by the assessee to have been incurred in the course of its business, accepted the same. Insofar the JCB rent expenses were concerned, the CIT(A) observing that the complete details viz. JCB Number, number of hours the JCB was used and rate per hour along with the payments made by the assessee, were clearly discernible from the documents placed on record by the assessee, had thus for the said reason accepted the veracity of the said expenses. As regards the architect fees paid by the assessee, it was noticed by the CIT(A) that the assessee had provided the complete details in respect of the payments made to the concerned professionals and had also deducted tax at source at the time of making of the payments to them. In our considered view, as the CIT(A) had on the basis of a well reasoned order concluded that the genuineness of the purchases and the expenses aggregating to Rs.78,48,076/- stood proved to the hilt by the assessee, therefore, we find no reason to take P a g e | C.O.301/Mum/2018 AY. 2012-13 DCIT, C-3 Vs. M/s Pawan Estates a different view and uphold his order to the said extent. The Ground of appeal
No. 1 raised by the revenue is dismissed.
13. We shall now advert to the disallowance of the transport charges of Rs.38,54,627/- made by the A.O. Insofar the objection that was raised by the A.O as regards the admission of the ‘fresh evidence’ that was filed by the assessee in support of the transport charges is concerned, we find that the CIT(A) had rightly concluded that as the assessee had tried to file the said documents before the A.O, therefore, it was not reasonable on his part to object to the admission of the documentary evidence filed by the assessee in the course of the proceedings before the CIT(A) in support of its claim of allowbility of the transport charges. On a perusal of the observations of the CIT(A), it stands revealed that as the assessee had placed on record the PAN Numbers of the transporters to whom the transport charges were paid, therefore, the CIT(A) had rightly concluded that as no obligation was cast upon the assessee as per the concession carved out in Sec.194C(6) of the I.T Act to deduct tax at source, thus no disallowance of the transport charges was liable to be made under Sec. 40(a)(ia) of the I.T Act. In fact, it was observed by the CIT(A) that the PAN details of the transporters that were filed by the assessee was also accepted by the A.O in his ‘remand report’. We thus finding no infirmity in the order of the CIT(A) that no disallowance was liable to be made under Sec.40(a)(ia) in respect of the transport charges, uphold his order to the said extent. As regards the observations of the A.O who had also disallowed the transport charges by invoking the provisions of Sec.37 and Sec. 69C of the I.T Act, we are unable to persuade ourselves to subscribe to the same. We find that as the assessee had placed on record sufficient documentary evidence to substantiate the incurring of the transport charges in the normal P a g e | C.O.301/Mum/2018 AY. 2012-13 DCIT, C-3 Vs. M/s Pawan Estates course of its business viz. (i) bills for transport expenses; (ii) ledger confirmation from the transporters; (iii) bank statement reflecting payments made to the said transporters; and (iv) copy of the PAN Cards and the details of the jurisdictional A.O of the transporters, therefore, the said transport charges cannot be disallowed by bringing the same within the sweep of Sec. 37 of the I.T Act. Insofar the disallowance made by the A.O under Sec. 69C is concerned, we are of the considered view that as the respective payments towards the transport charges were made by the assessee vide cheques drawn on its bank accounts which are duly accounted for in its ‘books of accounts’, therefore, the same cannot be characterised as an unexplained payment under Sec. 69C of the I.T Act. We thus in terms of our aforesaid observations uphold the order of the CIT(A) to the extent he had deleted the disallowance of transport charges of Rs.38,54,627/-. The Grounds of appeal
No. 2 and 2.1 raised by the revenue are dismissed.
14. As the Grounds of appeal No. 3 & 4 are general in nature, therefore, the same are dismissed as not pressed.
15. The appeal of the revenue is dismissed. C.O No. 301/Mum/2018 A.Y. 2012-13
16. It is stated by the ld. A.R that the cross objection filed by the assessee is merely supportive of the order of the CIT(A). As we have upheld the order passed by the CIT(A), therefore, the cross objection filed by the assessee is rendered as infructuous.
17. The Cross Objection filed by the assessee is dismissed as having been rendered as infructuous.