JUDGMENT Girish Chandra Gupta J.- subject matter of challenge in this appeal is judgment and order dated September 3, 2004, pertaining to block assessment for assessment years 1990-91 to 2000-01. questions formulated at time of admission of appeal are as follows: "(I) Whether, in view of fact that warrant of authorisation has been issued on December 2, 1999, and search was conducted in execution of said warrant of authorisation on December 8, 1999, and further alleged search on January 31, 2000, was alleged to have been made by officer who was not authorised under warrant of authorisation dated December 2, 1999, assessment which has been made under section 158BC of Act on January 31, 2002, is barred by limitation in view of section 158BE(b) of Act? (II) Whether, on true and proper interpretation of section 132(3) of Act, prohibitory order made under section 132(3) in respect of jewelleries which have been found in course of search and which has been valued by Departmental valuer on very day in course of search when authorised officer has not recorded any reasons as to why same cannot be seized under second proviso to section 132(1) of Act in absence of any finding or reason order under section 132(3) of Act is illegal, invalid and without jurisdiction? (III) Whether when order under section 132(3) is operative and appellant is prohibited from removal or otherwise dealing with jewelleries covered under section 132(3) of Act authorised officer has any competence or jurisdiction or authority to conduct any search in respect of said very articles in respect of which prohibitory order is still operative? (IV) Whether, in view of authorisation dated December 2, 1999, and in absence of any further authorisation, order passed under section 158BC(c) on January 31, 2002, is barred by limitation and is, therefore, illegal, invalid and without jurisdiction? " facts and circumstances of case appearing from assessment order which do not appear to have been disputed before appellate authorities nor before us are as follows: "A search and seizure was carried out on December 8, 1999, and January 25, 2000, at residence of Shri Navin Kr. Agarwal at 321, Samundra Mahal, Dr. A. B. Road, Worli, Mumbai-18. Notice under section 158BC dated June 23, 2000, was issued and duly served on assessee. In response to above notice under section 158BC, return for block period for assessment years 1990-91 to 1999-2000 was filed on September 15, 2000, declaring total undisclosed income at nil. During course of search, cash to tune of Rs.1,06,700 was found, of which Rs. 80,000 were seized. Jewellery and paintings worth Rs. 15,57,021 and Rs. 29,07,000, respectively, were found and there was no seizure. Mr. Ramesh Kr. Patodia, fellow of chartered accountant and authorised representative of assessee, started effective compliance only with effect from December 14, 2001. Mr. Patodia was requested to file some details, e.g., cash found and explanation with reference to bank statement, if any, paintings found, jewellery, silver utensils, value added tax with reference to letters dated October 8, 1999, addressed to shop owner at Sandton City, etc. As stated compliance came and Mr. Patodia filed only part of details as per requisition. Meanwhile, in order to record deposition of Mr. Navin Agarwal, notice under section 131 dated December 26, 2001, was issued and served on assessee duly but this endeavour has not been successful in spite of repeated opportunities provided from this end. Finally, on January 28, 2002, Mr. Patodia, vide petition pleaded that due to work pressure (pre-occupied too) it is not at all possible for his client to come all way to Kolkata for attending summon. Here it may be mentioned that, vide notice under section 131 dated December 26, 2001, opportunities for personal appearance were provided on January 4, 2002, January 21, 2002, and January 28, 2002. notice under section 131 dated December 26, 2001, was served on December 27, 2001, and since then assessee failed to pay any importance to said notice till January 28, 2002. It is improbable that assessee could not come to Kolkata in month's time. act of assessee has left no other alternative but to give me impression that assessee is not at all interested in appearing before me and in furnishing details as that will not be beneficial to his case." assessment was completed on January 31, 2002. In appeal preferred by assessee, Commissioner of Income-tax (Appeals) held that assessment was barred by time. In appeal preferred by Revenue, learned Tribunal reversed order of Commissioner of Income-tax (Appeals) and held that assessment order was passed within time limit prescribed under section 158BE of Income-tax Act and matter was restored to file of Commissioner of Income-tax (Appeals) with direction to decide matter on merits. Challenging aforesaid order present appeal was preferred by assessee. Mr. Bajoria, learned senior advocate, has confined his arguments to sole question as to whether assessment order dated January 31, 2002, is barred by limitation? He contended that on January 31, 2000, nothing really took place. reference to January 25, 2000, in assessment order is inadvertent mistake. Assessing Officer intended to refer to visit dated January 31, 2000. search, according to him, was completed on December 8, 1999. restraint order imposed on December 8, 1999, was vacated on 31st January 31, 2000. search party drew panchnama dated January 31, 2000, stating that search commenced at 15.20 hours and was closed at 15.30 hours. According to him, search dated January 31, 2000, was only for purpose of revocation of restraint order dated December 8, 1999, passed under section 132(3) of Income-tax Act. He, therefore, contended that period of limitation has to be reckoned from search dated December 8, 1999. Thus, period of limitation expired on December 31, 2001, whereas assessment order was passed on January 31, 2002, which is clearly out of prescribed period of limitation. He in support of his submission relied upon judgment in case of CIT v. S. K. Katyal reported in [2009] 308 ITR 168 (Delhi) wherein question was whether period of limitation is to be reckoned from November 17, 2000, when search took place or from January 3, 2001, when keys were handed back to assessee. question was answered in aforesaid case as follows (page 181): "... what happened on January 3, 2001, as recorded in panchnama of that date cannot be regarded as search. There was no looking for, no quest for something hidden. All that was done was that seals were inspected. After they were found to be intact, they were removed and keys were handed back to assessee. These circumstances clearly show that no search was conducted on January 3, 2001. For search to conclude at particular time and date, it must have continued till that time and date. Nothing was searched for after November 17, 2000. Thus, search was concluded on that date. It did not continue any further and mere mention in panchnama that search has been temporarily concluded for day to be subsequently resumed, would not make any difference because fact of matter is that no further search was conducted after November 17, 2000. It follows that it is panchnama of November, 2000, which is relatable to conclusion of search and not panchnama of January 3, 2001. Consequently, authorisation for search was executed on November 17, 2000, and not on January 3, 2001." We have not been impressed by submissions advanced by Mr. Bajoria. judgment, with respect, does not, in our opinion, lay down correct law. In two earlier judgments of Delhi High Court itself contrary views were taken. In case of M. B. Lal v. CIT reported in [2005] 279 ITR 298 (Delhi), following views were expressed (page 304): "Section 158BE(1)(b) and Explanation 2, which are relevant for our purposes may be extracted: '158BE. (1) order under section 158BC shall be passed,-... (b) within two years from end of month in which last of authorisations for search under section 132 or for requisition under section 132A, as case may be, was executed in cases where search is initiated or books of account or other documents or any assets are requisitioned on or after 1st day of January, 1997. Explanation 2.-For removal of doubts, it is hereby declared that authorisation referred to in sub-section (1) shall be deemed to have been executed,- (a) in case of search, on conclusion of search as recorded in last panchnama drawn in relation to any person in whose case warrant of authorisation has been issued; (b) in case of requisition under section 132A, on actual receipt of books of account or other documents or assets by authorised officer.' From plain reading of Explanation 2(a), it is evident that authorisation referred to in sub-section (1) is deemed to have been executed on conclusion of search as recorded in last panchnama drawn in relation to any person in whose case warrant of authorisation has been issued. What is noteworthy is that time limit for making of order under section 158BC read with section 158BE(1) will start from last of panchnamas. In instant case, authorisation was issued on February 2, 2000. search also started on same date and continued till June 29, 2000, during which period various articles and documents were seized. Tribunal has recorded finding to effect that there was no delay in executing search inasmuch as various lockers and steel almirah and cupboard were required to be searched. There was, therefore, no artificial extension of search proceedings as argued by appellants. If that be so, search would end only upon revocation of order passed under section 132(3) which, in instant case, was revoked only on June 29, 2000. period of limitation for making assessment order under section 158BC read with section 158BE of Act would, therefore, have to be reckoned from June 30, 2000 (being end of month in which last panchnama was drawn) and would end on June 30, 2002. assessment order, in instant case, was, however, made on June 27, 2002, which was well within outer limit of two years prescribed by law. Tribunal was, in that view, justified in repelling contention of assessee that order of assessment was beyond period of limitation prescribed for same. In light of what has been stated above, these appeals fail and are hereby dismissed but in circumstances without any order as to costs." In case of VLS Finance Ltd. v. CIT reported in [2007] 289 ITR 286 (Delhi), following views were expressed (page 296): "The respondents could have, on very first day of search, seized all relevant and irrelevant documents and books of petitioners, but they did not do so. We are of view that their decision on this (in favour of petitioners) cannot be used against them. We have also kept in mind two facts, namely, that even by adopting this procedure, respondents did not exceed 60 day limit as provided by section 132(8A) of Act and that for making assessment order respondents had still more than adequate time available, making it unnecessary for them to resort to any subterfuge so early on. Consequently, we are of opinion that respondents did not complete search on June 22, 1998, as alleged by petitioners, nor did they unduly prolong it. search concluded on August 5, 1998, and so in terms of Explanation 2 to section 158BE of Act period of limitation would begin from end of August, 1998, that is, August 31, 1998, onwards... second issue raised by learned counsel for petitioners would stand answered accordingly." In case of CIT v. S. K. Katyal (supra), Division Bench distinguished judgment in case M. B. Lal on ground that in that case there was no unexplained break in search, whereas judgment in case VLS Finance Ltd. was distinguished on ground that there were as many as 16 panchnamas. There was mass of documents and court found that search was concluded on August 5, 1998. It was held that where search was, in fact, conducted on day when last panchnama was drawn is distinguishable from panchnama which was prepared solely for purpose of removing seals and making over keys. Another reason advanced by Division Bench for purpose of distinguishing both judgments in case of M. B. Lal and VLS Finance Ltd. is that contention that search ends upon revocation of restraint order under section 132(3) is illogical. Division Bench expressed itself in following words (page 185 of 308 ITR): "... learned counsel for Revenue sought to derive proposition that search ends'only upon revocation' of restraint order under section 132(3). And, therefore, search in present appeal concluded on January 3, 2001, on which date restraint order was revoked. This line of thought does not appeal to us. illogicality of this submission is easily demonstrated by asking simple question'when would search conclude in case where there is no restraint order'." Although Division Bench posed question, as to when search would come to end where there is no restraint order but did not answer same. answer to that question is to be found in Explanation 2(a) quoted above. Ordinarily, authorisation for search is valid until same has been executed. In order to avoid any controversy as to when was authorisation executed Legislature has provided in aforesaid Explanation that authorisation shall be deemed to have been executed on conclusion of search as recorded in last panchnama. Therefore, law insists upon panchnama for purpose of formal recording that search is at end. Without such recording search once initiated does not come to end. We are unable to find any justification for view that search comes to end immediately after search has been concluded for day. Such argument may possibly have been advanced in absence of deeming provision contained in Explanation 2(a) to section 158BE. Law as we can see it is that search initiated pursuant to written authorisation may be kept in suspended animation so long as same is not formally brought to end in writing in presence of witnesses by drawing panchnama which is bound to be last panchnama. Another line of reasoning may be as follows: Section 70 of Code of Criminal Procedure provides as follows: "70. Form of warrant of arrest and duration.-(1) Every warrant of arrest issued by court under this Code shall be in writing, signed by presiding officer of such court and shall bear seal of court. (2) Every such warrant shall remain in force until it is cancelled by court which issued it, or until it is executed." Section 70 relates to warrant of arrest but section 70 is also applicable to search warrant as would appear from section 99 of Code of Criminal Procedure which provides as follows: "99. Direction, etc., of search warrants.-The provisions of sections 38, 70, 72, 74, 77, 78 and 79 shall, so far as may be, apply to all searchwarrants issued under section 93, section 94, section 95 or section 97." Sub-section 13 of section 132 makes all provisions relating to search and seizure contained in Code of Criminal Procedure to searches and seizures under sub-section (1) or sub-section (1A) of section 132 of Income- tax Act. To be precise sub-section (13) of section 132 of Income-tax Act provides as follows: "(13) provisions of Code of Criminal Procedure, 1973 (2 of 1974), relating to searches and seizure shall apply, so far as may be, to searches and seizure under sub-section (1) or sub-section (1A)." restraint order under section 132(3) is in aid of search and is valid for sixty days under section 132(8A) unless revoked earlier. During continuance of restraint order search itself cannot be said to have come to end. Division Bench appears to have been inclined to hold that resumption of search after gap of time is illegal. views expressed, in that regard are in paragraph 26 of judgment which read as follows (page 184 of 308 ITR): "These decisions clearly establish (i) search is essentially invasion of privacy of person whose property or person is subject to search; (ii) normally, search must be continuous; (iii) if it cannot be continuous for some plausible reason, hiatus in search must be explained; (iv) if no cogent or plausible reason is shown for hiatus in search, second or'resumed' search would be illegal; (v) by merely mentioning in panchnama that search has been temporarily suspended does not, ipso facto, continue search. It would have to be seen as fact as to whether search continued or had concluded; (vi) merely because panchnama is drawn up on particular date, it does not mean that search was conducted and/or concluded on that date; (vii) panchnama must be record of search or seizure for it to qualify as panchnama mentioned in Explanation 2(a) to section 158BE of said Act." basis for aforesaid views has not been disclosed. It is, though, true that search is invasion of privacy. But such invasion is permissible in appropriate cases. legality of search was not in question either in case of S. K. Katyal or before us. Therefore, any observation in that regard was uncalled for. Division Bench has, in paragraph 26 of its judgment stressed upon illegality of search where search is unduly prolonged. legality of search did not really arise for determination in case of Katyal. Even assuming that such argument has been or may be advanced, question which one has to ask is "whether such illegality or irregularity has or may have effect of making search itself non est?" answer to this question shall necessarily depend upon answer to further question as to whether such irregularity or illegality has occasioned any failure of justice. This follows from section 465 of Code of Criminal Procedure which provides as follows: "465. Finding or sentence when reversible by reason of error, omission or irregularity.-(1) Subject to provisions hereinbefore contained, no finding, sentence or order passed by court of competent jurisdiction shall be reversed or altered by court of appeal, confirmation or revision on account of any error, omission or irregularity in complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for prosecution, unless in opinion of that court, failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for prosecution has occasioned failure of justice, court shall have regard to fact whether objection could and should have been raised at earlier stage in proceedings." There can be no denial that by virtue of section 132(13) quoted above provisions contained in section 465 of Code of Criminal Procedure shall also become applicable. Reference may also be made to section 461 of Code which provides, inter alia, that if search warrant is issued by Magistrate in good faith though not empowered by law to do so, proceedings shall not be set aside. Construing section 465 which is successor of original section 537 of Code of Criminal Procedure, 1898, Supreme Court in case of Birichh Bhuian v. State of Bihar reported in AIR 1963 SC 1120 opined as follows: "As object of all rules of procedure is to ensure fair trial so that justice may be done, section in terms says that any violation of provisions to extent narrated therein not resulting in failure of justice does not render trial void. scope of clause (b) could be best understood, if brief historical background necessitating amendment was noticed. Judicial Committee in Subrahmania Ayyar v. King-Emperor [1902] ILR 25 Mad 61; 28 Ind App 257 (PC), held that disregard of express provision of law as to mode of trial was not mere irregularity such as could be remedied by section 537 of Criminal Procedure Code. There trial was held in contravention of provisions of sections 233 and 234 of Code of Criminal Procedure which provide that every separate offence shall be charged and tried separately except that three offences of same kind may be tried together in one charge if committed within period of one year. It was held that misjoinder of charges was not irregularity but illegality and, therefore, trial having been conducted in manner prohibited by law was held to be altogether illegal. Judicial Committee in V. M. Abdul Rahman v. King-Emperor ILR 5 Rang 53; 54 Ind App 96; AIR 1927 PC 44, considered that violation of provisions of section 360 of Code which provides that depositions should be read over to witnesses before they sign, was only irregularity curable under section 537 of Code. Adverting to Subrahmania Ayyar's case, [1902] ILR 25 Mad 61; 28 Ind APP 257 (PC) it pointed out that procedure adopted in that case was one which Code positively prohibited and it was possible that it might have worked actual injustice to accused. question again came before Privy Council in Babulal Choukhani v. King Emperor [1938] ILR 2 Cal 295; AIR 1938 PC 130. One of points there was whether trial was held in infringement of section 239(d) of Criminal procedure Code. Board held that it was not. Then question was posed that if there was contravention of said section, whether case would be governed by Subramania Ayyar's said section, whether case would be governed by Subramania Ayyar's case [1902] ILR 25 Mad 61; 28 Ind App 257 (PC) or Abdul Rahman's case, ILR 5 Rang 53; 54 Ind App 96 ; AIR 1927 PC 44. Board did not think it was necessary to discuss precise scope of what was decided in Subrahmania Ayyar's case, ILR 25 Mad 61; 28 Ind App 257 because in their understanding of section 239(d) of Code that question did not arise in that case. point was again mooted by Board in Pulukuri Kottaya v. King-Emperor [1948] ILR Mad 1; AIR 1947 PC 67. In that case, there had been breach of proviso to section 162 of Code. It was held that in circumstances of case said breach did not prejudice accused and, therefore, trial was saved by section 537 thereof. Sir John Beaumont, speaking for Board, observed at page 12 (of ILR Mad) (at pages 69-70 of AIR): 'When trial is conducted in manner different from that prescribed by Code, as in [1902] ILR 25 Mad 61; 28 Ind App 957 (PC), trial is bad, and no question of curing irregularity arises, but if trial is conducted substantially in manner prescribed by Code, but some irregularity occurs in course of such conduct, irregularity can be cured under section 537, and none less so because irregularity involves, as must nearly always be case, breach of one or more of very comprehensive provisions of Code. distinction drawn in many of cases in India between illegality and irregularity is one of degree rather than of kind.' It will be seen from said observations that Judicial Committee left to courts to ascertain in each case whether infringement of provision of Code is illegality or irregularity. There was marked cleavage of opinion in India whether later decisions of Privy Council modified rigour of rule laid down in Subrahmania Ayyar's case, [1902] ILR 25 Mad 61; 28 Ind App 957 and view was expressed in several decisions that mere misjoinder of charges did not necessarily vitiate trial unless there was failure of justice, while other decisions took contrary view. This court in Janardan Reddy v. State of Hyderabad [1951] SCR 344; AIR 1951 SC 217 left open question for future decision. In this state of law, Parliament has intervened to set at rest conflict by passing Act XXVI of 1955 making separate provision in respect of errors, omissions or irregularities in charge and also enlarging meaning of expression such errors, etc., so as to include misjoinder of charges. After amendment there is no scope for contending that misjoinder of charges is not saved by section 537 of Criminal Procedure Code if it has not occasioned failure of justice." Both search and seizure are steps in investigation. Investigation generally consists of following steps as laid down by apex court in case of H. N. Rishbud v. State of Delhi reported in AIR 1955 SC 196. "Thus, under Code investigation consists generally of following steps: (1) Proceeding to spot, (2) Ascertainment of facts and circumstances of case, (3) Discovery and arrest of suspected offender, (4) Collection of evidence relating to commission of offence which may consist of (a) examination of various persons (including accused) and reduction of their statements into writing, if officer thinks fit, (b) search of places or seizure of things considered necessary for investigation and to be produced at trial, and (5) Formation of opinion as to whether on material collected there is case to place accused before magistrate for trial and if so taking necessary steps for same by filing of charge- sheet under section 173." restraint order under section 132(3) is undoubtedly in aid of investigation and has been conceived as substitute, not amounting to seizure, where it is not practicable to exercise power of seizure as would appear from sub-section (3) of section 132 which reads as follows: "The authorised officer may, where it is not practicable to seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing, for reasons other than those mentioned in second proviso to sub-section (1), serve order on owner or person who is in immediate possession or control thereof that he shall not remove, part with or otherwise deal with it except with previous permission of such officer and such officer may take such steps as may be necessary for ensuring compliance with this sub-section. Explanation.-For removal of doubts, it is hereby declared that serving of order as aforesaid under this sub-section shall not be deemed to be seizure of such books of account, other documents, money, bullion, jewellery or other valuable article or thing under clause (iii) of sub-section (1)." It was contended that on January 31, 2000, no search took place only restraint order was vacated. From panchnama dated January 31, 2000, it appears that at 15.30 hours search finally concluded. admitted fact that keys were made over and restraint order under section 132(3) was lifted corroborates fact that search finally came to end. search could not have been at end on any day prior to January 31, 2000. object of withholding keys was to resume search if and when it was felt necessary. return of keys manifested intention that search was at end. Since law required formal recording of conclusion of search panchnama dated January 31, 2000, was drawn up and business transacted on day was recorded. It is to be noticed that period of limitation for purposes of Income-tax Act under section 158BE is dependent on conclusion of search and not on conclusion of investigation. Investigation includes examination of witnesses which can be done under section 131 of Income-tax Act. Assessing Officer wanted to examine assessee but he did not turn up after conclusion of search as would appear from assessment order quoted above. Another pertinent question in accordance with section 465(2) of Code of Criminal Procedure shall be "whether by keeping search pending till January 31, 2000, any failure of justice was occasioned?" Neither in case of Katyal nor before us any such point was canvassed. second pertinent question shall be "was point of limitation raised at earliest stage before Assessing Officer? assessee by his letter dated January 28, 2002, addressed to Assessing Officer contended that due to his pre-occupation he was unable to appear before latter to record his deposition. When case of assessee is that time prescribed for assessment had expired on December 31, 2001, he should have raised point in his letter dated January 28, 2002, which he did not do. Therefore, prolongation of search did not cause any prejudice to assessee not to talk of occasioning any failure of justice. It appears from assessment order that assessee was served with justice. It appears from assessment order that assessee was served with notice under section 131 to appear for recording his deposition. Time to do so was extended on four occasions. assessee by his letter dated January 28, 2002, evinced his intention not to appear. In those circumstances assessment was completed on January 31, 2002, which otherwise might have been completed on or before December 31, 2001. For aforesaid reasons, we are of opinion that period of limitation has to be reckoned from January 31, 2000. Question No. 1 is answered in negative and in favour of Revenue. Questions Nos. 2, 3 and 4 were not pressed. appeal is, therefore, dismissed. Parties shall bear their own costs. Arindam Sinha J.-I agree. *** Navin Kumar Agarwal v. Commissioner of Income-tax