Appeal details
Counselvise Citation
[2013] 122 COUNSELVISE.COM (IT) 8272 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 6 month(s) 21 day(s)
Appellant
Respondent
Appeal Type
Cross Objection
Pronouncement Date
28-02-2013
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
A
Next Hearing Date
19-02-2013
Assessment Year
misc
Appeal Filed On
07-08-2009
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD A BENCH BEFORE: SHRI D.K. TYAGI JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTA NT MEMBER 1 DASHRATHBHAI V.PATEL 2 GUJRAT MULTI GAS BASE CHEMICALS PVT. LTD. 3 MANEK CHEMICALS PVT LTD. 4 KIRIT V. PATEL 5 GUJRAT MINECHEM (APPELLANTS) VS. DCIT CENTRAL CIRCLE 2(2) AHMEDABAD (RESPONDENT) REVENUE BY : SRI SHELLEY JINDAL, CIT- D.R. ASSESSEE BY : SRI MUKESH M. PATEL, A.R. DATE OF HEARING : 19-02-2013 DATE OF PRONOUNCEMENT : 28-02-2013 / ORDER PER : D.K TYAGI, JUDICIAL MEMBER:- IN ALL THESE C.OS. ASSESSEE HAS TAKEN FOLLOWING CO MMON GROUND:- 1. THAT THE LEARNED CIT(A) ERRED IN LAW AND ON FAC TS IN NOT UPHOLDING THE CONTENTION OF THE APPELLANT THAT SINC E THE PROVISO TO SEC. 113 WAS INSERTED ONLY W.E.F. 01-06-2002, THE SAME W AS NOT APPLICABLE TO THE SEARCH CONDUCTED AT THE ASSESSEES PREMISES ON 16-11-1999 AND IN VIEW OF THE SAME, NO SURCHARGE WAS LEVIABLE U/S 113 ON THE INCOME- TAX DETERMINED AT 60 % OF THE UNDISCLOSED INCOME AS SESSED U/S. 158 BC. C.O. NOS. 177,178,179,202 & 203/AHD/20 09 (ARISING OUT OF IT(SS)A NOS. 38,39,40,45 &46/AH D/2009) A.Y.:-BLOCK PERIOD 01-04-1989 TO 16-11- 1999 C.O.NOS. 177,178,179,202 &203/AHD/2009 A.Y. BLOCK PERIOD PAGE DCIT VS. DASHRATH V. PATEL 2 2. THOUGH THESE C.OS. WERE HEARD ALONGWITH ITA NOS. 38,39,40,45 & 46/AHD/2009 BUT ARE BEING DISPOSED OFF SEPARATELY A S THEY HAVE NO BEARING ON THESE REVENUES APPEALS. 3. BRIEF FACTS OF THE CASE ARE THAT DURING THE APPE LLATE PROCEEDINGS BEFORE LD. CIT(A) ASSESSEE TOOK AN ADDITIONAL GROUND CHALL ENGING THE LEVY OF SURCHARGE U/S 113 OF THE ACT. THE CONTENTION OF TH E ASSESSEE BEFORE LD. CIT(A) WAS THAT WHILE FINALIZING THE BLOCK ASSESSME NT THE A.O. HAS COMPUTED THE TAX PAYABLE ON THE TOTAL UNDISCLOSED I NCOME ASSESSED U/S 158BC AT THE RATE OF 67.2 PERCENT, WORKING OUT A CH ARGE OF INCOME TAX AT 60 PERCENT AND LEVYING SURCHARGE THEREON AT 12 PERCENT OF THE INCOME TAX U/S 113 OF THE ACT. IT WAS FURTHER SUBMITTED THAT SECT ION 113 AS IT STOOD UNTIL 31 ST MAY, 2002 DID NOT HAVE ANY PROVISION IN REGARD TO LEVY OF SURCHARGE ON THE FLAT RATE OF INCOME TAX AT 60 PERCENT. IT WAS ONLY BY THE FINANCE ACT 2002 THAT THE PROVISO TO SECTION 113 CAME TO BE INT RODUCED PROVIDING THAT THE TAX CHARGEABLE UNDER THIS SECTION SHALL BE INCREASE D BY A SURCHARGE AS APPLICABLE IN THE ASSESSMENT YEAR RELEVANT TO THE P REVIOUS YEAR IN WHICH SEARCH WAS INITIATED U/S 132. THUS, THERE WAS NO P ROVISION FOR LEVYING OF SURCHARGE U/S 113 DURING THE YEARS UNDER APPEAL AS SEARCH U/S 132 WAS INITIATED ON 16-11-1999. FOR MAKING THIS SUBMISSIO N ASSESSEE RELIED ON THE DECISION OF SPECIAL BENCH OF ITAT IN THE CASE OF ME RIT ENTERPRISES VS. DCIT 101 ITD 1 (HYD)(SB) WHEREIN IT WAS HELD THAT THE IN TRODUCTION OF THE PROVISO TO SECTION 113 W.E.F. 01-06-2002 WAS ONLY P ROSPECTIVE IN NATURE AND THE SAME CANNOT BE APPLIED TO SEARCHES INITIATED PR IOR TO THAT DATE. C.O.NOS. 177,178,179,202 &203/AHD/2009 A.Y. BLOCK PERIOD PAGE DCIT VS. DASHRATH V. PATEL 3 4. LD. CIT(A) PLACING RELIANCE ON THE DECISION OF H ONBLE SUPREME COURT IN THE CASE OF CIT VS. SURESH N. GUPTA 297 IT R 322(SC) WHEREIN IT HAS BEEN HELD THAT THOUGH THE PROVISO TO SECTION 11 3 HAS BEEN INSERTED ONLY W.E.F. 01-06-2002, WAS APPLICABLE TO SEARCHES CONDU CTED PRIOR TO THAT DATE AS IT WAS CLARIFICATORY AND CURATIVE IN NATURE, DECID ED THE ISSUE AGAINST THE ASSESSEE. SINCE LD. CIT(A) HAS FOLLOWED HONBLE AP EX COURT DECISION IN THE CASE OF CIT VS. SURESH N. GUPTA (SUPRA) WHILE DECI DING THE ISSUE AGAINST THE ASSESSEE, WE FEEL NO NEED TO INTERFERE WITH THE ORD ER PASSED BY HIM AND THE SAME IS HEREBY UPHELD. 5. IN THE RESULT, ALL THE C.OS. FILED BY ASSESSEE A RE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (T.R. MEENA) (D.K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 28 /02/2013 A.K. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A) 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '#
