JUDGMENT INDORE BENCH A. R. TIWARI, J. : These Misc. Civil Cases are heard as connected matters and are being disposed of by this common order. Misc. Civil Case No. 60 of 1989 2. On application under s. 256(2) of the IT Act, 1961 (for short the Act), filed by the assessee (Kamal Kishore & Co., Khachrod), this Court directed the Tribunal to state the case and refer the undernoted question of law for our opinion arising out of the common order dt. 8th May, 1986 passed by the Tribunal in ITA Nos. 559 to 561/Ind/85 for asst. yrs. 1977-78 to 1979-80 : "Whether, on the facts and in the circumstances of the case, the Tribunal, in view of the ground of appeal taken before it, erred in law in setting aside the order passed by the AAC whereby the order of the ITO cancelling registration/continuation of registration of the assessee firm was set aside ?" 3. Facts in brief are that the assessee observed financial year as its accounting period. It came into existence by a partnership dt. 23rd March, 1976 with three partners. The said firm was granted registration for the asst. yr. 1977-78 which was continued for subsequent years 1978-79 and 1979-80. In Sept., 1980, survey under s. 133A of the Act was conducted at the business premises of assessee at Khachrod and was also at premises of M/s Iqbal & Co, Unhel and premises of M/s Chetan Swaroop Omprakash & Co., Nagda. The said survey was conducted on the basis of information that the business done in the names of Kamal Kishore & Co. and M/s Iqbal & Co. belonged to the members of the family of three brothers, namely, Chetan Swaroop, Omprakash and Baleshwar Dayal. The ITO collected material and concluded that the assessee-firm was not genuine and was owned by M/s Chetan Swaroop Omprakash & Co.. The ITO issued show-cause notice on 2nd April, 1981 to the assessee inviting objection as to why registration should not be cancelled under s. 186. The ITO found the reply unsatisfactory and after obtaining approval from IAC cancelled the registration for the aforesaid three assessment years. The assessee then filed the appeal before the AAC. The AAC allowed the appeal. The Department then filed the appeal before the Tribunal. The Tribunal allowed the appeals of the Department relating to the assessee and to M/s Iqbal & Co. The assessee then filed the appeal before the AAC. The AAC allowed the appeal. The Department then filed the appeal before the Tribunal. The Tribunal allowed the appeals of the Department relating to the assessee and to M/s Iqbal & Co. and Chetan Swaroop Omprakash by common order dt. 8th May, 1986. Aggrieved, the assessee filed the application under s. 256(1) of the Act, which was rejected. The assessee then filed application under s. 256(2) of the Act in this Court which was registered as Misc. Civil Case. That Misc. Civil Case was allowed and direction was issued to state the case and refer the aforesaid question. Misc. Civil Case No. 66 of 1989 4. In compliance of the direction issued by this Court on 4th Aug., 1988, on application presented by the assessee (M/s Iqbal & Company, Unhel) arising out of the common order dt. 8th May, 1986 passed by the Tribunal in ITA No. 563 to 567/Ind/83, the Tribunal stated the case and referred the undernoted questions for our opinion : "(i) Whether, on the facts and in the circumstances of the case, the Tribunal, in view of the grounds of appeal taken before it, erred in law in setting aside the findings given by the AAC that the assessee was a separate entity and the assessment made in the case of the assessee should be treated as substantive ? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal, in view of the grounds of appeal taken before it, erred in law in setting aside the order passed by the AAC, whereby the order of the ITO cancelling registration/continuation of registration of the assessee firm was set-aside ?" Misc. Civil Case No. 61 of 1989 5. In compliance of the direction issued by this Court on 4th Aug., 1988 on application presented under s. 256(2) of the Act filed by the assessee (M/s Chetan Swaroop Omprakash & Co., Nagda) arising out of the order dt. 8th May., 1986 passed by the Tribunal in ITA No. 616/Ind/83 for asst. yr. 1979-80, the Tribunal stated the case and referred the undernoted question of law for our opinion : "Whether, on the facts and in the circumstances of the case, the Tribunal, in view of the grounds of appeal taken before it, erred in setting aside the entire order passed by the CIT(A)?" Misc. yr. 1979-80, the Tribunal stated the case and referred the undernoted question of law for our opinion : "Whether, on the facts and in the circumstances of the case, the Tribunal, in view of the grounds of appeal taken before it, erred in setting aside the entire order passed by the CIT(A)?" Misc. Civil Case No. 386 of 1991 6. At the instance of the assessee (M/s Chetan Swaroop Omprakash & Co., Nagda), the Tribunal has stated the case and referred the undernoted question of law, arising out of the order dt. 6th Nov., 1990 passed by the Tribunal in ITA No. 1084/Ind/85 for asst. yr. 1981-82, for our opinion : "Whether, on the facts and in the circumstances of the case, the Tribunal, in view of the grounds of appeal taken before it, erred in setting aside the entire order passed by the CIT(A)?" 7. We have heard Shri G. M. Chaphekar, learned senior counsel with Shri S. S. Samvatsar and Shri H. C. Sarda, for the applicant/assessee and Shri A.M. Mathur, learned senior counsel with Shri A. K. Shrivastava, for the non-applicant/Department in all these cases. 8. Shri Chaphekar submitted that against the assessee M/s Kamal Kishore & Co., Khachrod (Misc. Civil Case No. 60 of 1989) Department filed no appeal yet the Tribunal interfered with the order passed by the lower appellate Court and disturbed the order passed in favour of the assessee despite the fact that the order so disturbed had attained the finality. Shri Chaphekar, therefore, submitted that the Tribunal erred in law in setting aside the order passed by the AAC without there being any appeal by the Department. Shri Chaphekar with regard to Misc. Civil Case No. 66 of 1989 submitted that the Tribunal committed grave error of law in upsetting the finding with regard to entity in the absence of any ground in the appeal in that regard. He also submitted that second question could not arise in the absence of the first question and first question arose because the Tribunal set aside the favourable finding despite the absence of ground in the Memorandum of Appeal. He submitted that status was not challenged and the litigation was restricted only to the quantum. He, therefore, submitted that both the questions in this Misc. Civil Case deserve to be answered in favour of the assessee. As regards Misc. He submitted that status was not challenged and the litigation was restricted only to the quantum. He, therefore, submitted that both the questions in this Misc. Civil Case deserve to be answered in favour of the assessee. As regards Misc. Civil Cases No. 61 of 1989 and 386 of 1991, the counsel for the applicant submitted that the orders passed by the Tribunal are consequential in nature and if the answers in Misc. Civil Cases No. 60 of 1989 and 66 of 1989 go in favour of the assessee, then the answers in these two Misc. Civil Cases deserve to be answered in favour of the assessee ipso facto being consequential in nature. 9. The counsel for the non-applicant/Department was unable to point out as to how the Tribunal had the jurisdiction to set aside the finding in the absence of the appeal so far as Misc. Civil Case No. 60 of 1989 is concerned and was also unable to explain as to how the question of status was disturbed in the absence of any challenge by the Department in that regard. He was also unable to point out as to how the orders relating to Misc. Civil Cases No. 61 of 1989 and 386 of 1991, consequential in nature, are sustainable independent of the orders passed in Misc. Civil Cases No. 60 of 1989 and 66 of 1989. 10. Sec. 253 of the Act permits appeals to the Tribunal. Under sub-s. (2) of this section, the CIT may, if he objects to any order, direct the AO to appeal to the Tribunal against the order. It is thus clear that there has to be an appeal and there has to be a specific objection. Under Order XLI r. 2 of CPC also it is clear that the appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal. Admittedly the ground of status was not taken by the Department in appeal in terms of s. 253(2) of the Act so far as Misc. Civil Case No. 66 of 1989 is concerned. It is also an irrefragable that no appeal was filed in terms of s. 253(2) of the Act so far as Misc. Civil Case No. 60 of 1989 is concerned. Civil Case No. 66 of 1989 is concerned. It is also an irrefragable that no appeal was filed in terms of s. 253(2) of the Act so far as Misc. Civil Case No. 60 of 1989 is concerned. No leave was obtained to urge the ground in regard to the status as regards the liability of tax. It is further luculent that the orders passed related to Misc. Civil Cases No. 61 of 1989 and 386 of 1991 are consequential in nature. 11. In view of the aforesaid peculiar position, we answer the questions referred in the aforesaid four Misc. Civil Cases in the affirmative, i.e. in favour of the assessee and against the Department in the light of the infirmity as pointed out above. 12. These Misc. Civil Cases are thus disposed of in terms indicated above. We, however, grant liberty to the non-applicant/Department to resort to appropriate remedy, if permissible under the law, so far as the orders in the aforesaid referred appeals are concerned. In case of such proceedings for remedy, the applicant/assessee shall have freedom to contest the same in conformity with law. 13. These Misc. Civil Cases are thus disposed of with no orders as to costs. 14. Counsel fee for each side in each case is, however, fixed at Rs. 750, is certified. 15. Transmit a copy of the order in each case to the Tribunal. 16. Retain this order in the records of Misc. Civil Case No. 60 of 1989 and place its copy each in the records of connected Misc. Civil Cases, as particularised above, for ready reference.