Appeal details
Counselvise Citation
[2016] 133 COUNSELVISE.COM (IT) 2502 (ITAT-PUNE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
5 year(s) 10 month(s) 28 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
18-03-2016
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
B
Next Hearing Date
15-12-2015
Assessment Year
misc
Appeal Filed On
20-04-2010
Judgement Text
, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . . , ! , # $ BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.603/PN/2010 BLOCK PERIOD ASST. YEARS 1991-92 TO 2001-02 SHRI SHIRISH C. KARIA, PROP. OF M/S. SIDDHARTH BUILDERS, SIDDHARTH CHAMBERS, LANE NO.5, OPP : CANARA BANK, NORTH MAIN ROAD, KOREGAON PARK, PUNE 411001 PAN NO.ABGPK1619L . / APPELLANT V/S DCIT, CIRCLE-2, PUNE . / RESPONDENT / ASSESSEE BY : SHRI NIKHIL PATHAK / REVENUE BY : SHRI HITENDRA NINAWE / ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER 24-02-2010 OF THE CIT(A)-II, PUNE RELATING TO THE BLOCK PERIOD ASSESSMENT YEARS 1991-92 TO 2001-02. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ORDER U/S.15 8BD R.W.S. 158BC WAS PASSED ON 29-11-2005 IN WHICH THE AO H AD DETERMINED THE TOTAL UNDISCLOSED INCOME AT RS.50,39,695/-. THE AO COMPUTED THE TAX AT RS.30,23,817/-. SUBSEQUENTLY, TH E AO / DATE OF HEARING :17.03.2016 / DATE OF PRONOUNCEMENT: 18.03.2016 2 ITA NO.603/PN/2010 VIDE ORDER U/S.154 PASSED ON 30-03-2009 LEVIED SURCHARGE @17% IN ACCORDANCE WITH THE PROVISO TO SECTION 113 OF THE I.T. A CT. THE AO LEVIED THE SURCHARGE RELYING ON THE DECISION OF HONBLE SU PREME COURT IN THE CASE OF CIT VS. SURESH N.GUPTA. 3. THE ASSESSEE CHALLENGED THE ORDER OF THE AO BEFORE THE CIT(A) AND THE LD.CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE. 4. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. THE LD.CIT(A) ERRED IN CONFIRMING THE LEVY OF SU RCHARGE OF RS.5,14,049/- WITHOUT APPRECIATING THAT THE SEARCH ON SHRI CHHOTANI HAD TAKEN PLACE ON 14-02-2001 AND THEREFORE, NO SURC HARGE WAS LEVIABLE IN RESPECT OF THE SEARCH COMMENCED PRIOR TO 01-06-2002. 2. WITHOUT PREJUDICE TO THE ABOVE GROUND, THE LD.CI T(A) FAILED TO APPRECIATE THAT THE ISSUE REGARDING LEVY OF SURCHARGE IN RESPECT OF THE SEARCH WHICH WAS COMMENCED PRIOR TO 01-06-2002 WAS A D EBATABLE ISSUE AND WAS NOT RECTIFIABLE U/S.154. 3. THE LD.CIT(A) ERRED IN HOLDING THAT THE LEARNED A.O. WAS JUSTIFIED IN LEVYING THE SURCHARGE BY FOLLOWING THE D ECISION OF SUPREME COURT IN THE CASE OF SURESH N. GUPTA 297 ITR 322 WITH OUT APPRECIATING THAT THE SAID DECISION IS REFERRED TO THE LARGER BENCH AND HENCE, THE ISSUE IS A DEBATABLE ISSUE AND ACCORDINGLY, THE SAME COUL D NOT BE RECTIFIED U/S.154. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND O R DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 5. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBM ITTED THAT SEARCH IN THE INSTANT CASE U/S.132 HAD TAKEN PLACE ON 1 4-02-2001 IN THE BUSINESS AND RESIDENTIAL PREMISES OF SHRI TAYYAB H. CHHOTANI. ON THE BASIS OF CERTAIN DOCUMENTS SEIZED FROM T HE BUSINESS AND RESIDENTIAL PREMISES OF SHRI TAYYAB H. CHHOTAN I THE AO HAS ISSUED NOTICE U/S.158BD. REFERRING TO THE FULL BENC H DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. V ATIKA TOWNSHIP REPORTED IN 49 TAXMANN.COM 249 HE SUBMITTED T HAT THE HONBLE SUPREME COURT IN THE SAID DECISION HAS OVERRULED THE 3 ITA NO.603/PN/2010 DIVISION BENCH DECISION IN THE CASE OF SHRI SURESH N. GUPTA REPORTED IN 297 ITR 322. IT HAS BEEN HELD IN THE SAID D ECISION THAT PROVISO TO SECTION 113 INSERTED BY THE FINANCE ACT 2002 W.E.F. 01- 06-2002 TO IMPOSE SURCHARGE IN SEARCH ASSESSMENT IS NO T CLARIFICATORY OR RETROSPECTIVE. SINCE THE SEARCH IN THE INS TANT CASE HAS TAKEN PLACE PRIOR TO INSERTION OF PROVISO TO SECTION 1 13, THEREFORE, NO SURCHARGE IS LEVIABLE. 6. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND FAIRLY CONCEDED THAT THE ISSUE STANDS DECIDED AGAINST THE REV ENUE BY THE FULL BENCH DECISION OF HONBLE SUPREME COURT IN THE CASE OF VATIKA TOWNSHIP (SUPRA). 7. AFTER HEARING BOTH THE SIDES, WE FIND THE SEARCH IN THE INSTANT CASE HAS TAKEN PLACE ON SHRI TAYYAB H. CHHOTANI ON 14-0 2-2001 BASED ON WHICH NOTICE U/S.158BD HAS BEEN ISSUED TO THE ASSESSEE. THEREFORE, SINCE THE SEARCH HAS TAKEN PLACE PRIOR TO 01- 06-2002, THEREFORE, IN VIEW OF THE FELL BENCH DECISION OF HONBLE SUPRE ME COURT IN THE CASE OF VATIKA TOWNSHIP (SUPRA) SURCHARGE IS NOT LEVIABLE IN THE INSTANT CASE. THE ORDER OF THE CIT(A) IS ACC ORDINGLY SET ASIDE AND THE GROUNDS RAISED BY THE ASESSEE ARE ALLOWED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18-03-2016. SD/- SD/- ( VIKAS AWASTHY ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE ; DATED : 18 TH MARCH, 2016. 4 ITA NO.603/PN/2010 & '#)! *! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT (A) - I I , PUNE 4. 5. 6. THE CIT-II, PUNE $ ''(, (, / DR, ITAT, B PUNE; - / GUARD FILE. / BY ORDER , // TRUE COPY // // TRUE COPY // // TRUE COPY // TRU /0 ' ( / SR. PRIVATE SECRETARY (, / ITAT, PUNE
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