ACIT, JODHPUR V. GOPI KISHAN MALANI, JODHPUR

MA 44/JODH/2008

AI Insights

The case involves three Miscellaneous Applications (MA No. 40, 43, & 44/Jodh/2008) filed by the Assistant Commissioner of Income Tax (ACIT), Central Circle-1, Jodhpur, against Sh. Nand Kishore Malani and others. These applications sought modification of the Tribunal's earlier order dated 13.06.2007, which had dismissed the Revenue's appeals concerning the surcharge for the block assessment years 1995-96 to 2002-03. The Tribunal's initial dismissal was based on the interpretation that section 113 of the Income Tax Act, applicable to searches conducted on or after 01.06.2002, did not pertain to the cases in question, as the searches occurred in 2001. However, following the Supreme Court's decision in CIT vs. Suresh N. Gupta, which clarified the applicability of the Finance Act to the year of search initiation, the Tribunal found grounds to modify its earlier decision and restore the appeals on the surcharge issue.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 707002 (ITAT-JODHPUR)
• Duration Of Justice: 17 year(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-07-2025
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 07-07-2008
• Other Referred Cases: CIT vs. Suresh N. Gupta
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: KARNI DAD

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR. BEFORE: Dr. M. L. MEENA, ACCOUNTANT MEMBER AND SHRI NARINDER KUMAR, JUDICIAL MEMBER MA No. 40/Jodh/2008 (Arising out of ITSSA No. 64/JU/2006) (Block A.Y. 1995-96 to A.Y. 2002-03) The ACIT, Central Circle-1, Jodhpur. Vs. Sh. Nand Kishore Malani, 76, 1st Polo, Paota, Jodhpur. [PAN: ACEPM8852C] (Appellant) (Respondent) MA No. 43/Jodh/2008 (Arising out of ITSSA No. 63/JU/2006) (Block A.Y. 1995-96 to A.Y. 2002-03) The ACIT, Central Circle-1, Jodhpur. Vs. Sh. Ramesh Chand Malani, 76, 1st Polo, Paota, Jodhpur. [PAN: AGCPM3978R] (Appellant) (Respondent) MA No. 44/Jodh/2008 (Arising out of ITSSA No. 62/JU/2006) (Block A.Y. 1995-96 to A.Y. 2002-03) The ACIT, Central Circle-1, Jodhpur. Vs. Sh. Gopi Kishan Malani, 76, 1st Polo, Paota, Jodhpur. [PAN: AAPPM3322C] (Appellant) (Respondent) Appellant by : None Respondent by: Shri Karni Dad, Addl. CIT(Sr. DR) MA No.40, 43 & 44/Jodh/2008 Sh. Kand Kishore Malani & Ors. 2 Date of Hearing: 30/06/2025 Date of Pronouncement: 07 /07/2025 ORDER PER: NARINDER KUMAR, JUDICIAL MEMBER Above captioned three Miscellaneous Applications came to be presented in July, 2008, with the prayer for modification of order dated 13.06.2007 passed by Jodhpur Bench, Jodhpur. 2. Vide order dated 13.06.2007, three appeals captioned above, pertaining to the Block period A.Y. 1995-96 to 2002-03, filed by the Revenue, were dismissed. That order was authored by Learned Judicial Member. Learned Accountant Member was the co-author. 3. It may be mentioned here that by way of these three Miscellaneous Application, Revenue has sought modification of the order dated 13.6.2007, only as regards dismissal of the their appeals on the issue of surcharge. 4. Arguments heard. File perused. 5. As is available from para 7 of the order dated 13.06.2007, the above captioned three appeals were dismissed while observing that search in these matters took place MA No.40, 43 & 44/Jodh/2008 Sh. Kand Kishore Malani & Ors. 3 on 23.01.2001 and the provisions of Section 113 of Income Tax Act were applicable to such cases in which search had taken placed on or after 01.06.2002. 6. Ld. DR for the department-appellant-applicant has referred to decision dated 07.01.2008 by Hon’ble Apex Court in case of CIT vs. Suresh N. Gupta , Civil Appeal No. 32 of 2008, and submitted that the proviso inserted in section 113 of the Act merely clarified that the relevant date of applicability of the Finance Act would be the year in which search stood initiated u/s 158BC. Therefore, Ld. DR has urged that the Miscellaneous Applications be allowed and the three appeals be restored to their original number(s) only on the issue of surcharge. 7. As is available from the copy of the extract of decision in Civil Appeal No. 32 of 2008 decided by Hon’ble Apex Court i.e. CIT vs. Suresh N. Gupta case (supra), made available with the applications, proviso inserted in section 113 merely clarified that the relevant date of applicability of the Finance Act would be the year in which search stood initiated u/s 158BC.. 8. In view of the decision by Hon’ble Apex Court and applying the same to the facts of present 3 matters, all three miscellaneous application deserve to be allowed as regards the issue of surcharge .i.e. ground No. 4 of the said appeals. We order accordingly. MA No.40, 43 & 44/Jodh/2008 Sh. Kand Kishore Malani & Ors. 4 Issue of notice to the parties for hearing on the appeals on ground No.4 i.e. the issue of surcharge. Judicial Member having joined and presided over through virtual mode from Jaipur Benches, order needs pronouncement under Rule 34(4) of the Income Tax (Appellate Tribunal) Rules, 1963 by placing the details on the notice board. Copy of common order be placed in the connection applications. Files be consigned to the record room after the needful is done by the office. Sd/- Sd/- (Dr. M. L. Meena ) (Narinder Kumar ) Accountant Member Judicial Member Date: 07/07/2025 *Santosh Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(Appeals) (4) The CIT concerned (5) The Sr. DR, I.T.A.T By Order Asstt. Registrar. "