SHRI BALDEVBHAI P. PATEL, V. THE ACIT, CEN. CIR. -1(3),

ITSSA 376/AHD/2003

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9559 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 year(s) 25 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-10-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 28-10-2013
• Assessment Year: misc
• Appeal Filed On: 03-10-2003
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PPE
• Keywords: Block assessment

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BENCH, AHMEDABAD .., ! ! ! ! ' #$, BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER (SS) !./ IT(SS)A NO.376/AHD/2003 (BLOCK PERIOD - AY : 1991-92 TO 2001-02) BALDEVBHAI P.PATEL A-9, GALAXY VIEW APT. NR.ANKUR ROAD NARANPURA AHMEDABAD / VS. THE ASST.CIT CENTRAL CIRCLE-1(3) AHMEDABAD & !./'( !./ PAN/GIR NO. : ABYPP 8210 E ( &) / // / APPELLANT ) .. ( *+&) / RESPONDENT ) &) , / APPELLANT BY : - NONE - *+&) - , / RESPONDENT BY : SHRI T.P.KRISHNAKUMAR, CIT-DR ' . - $/ / / / / DATE OF HEARING : 28/10/2013 012 - $/ / DATE OF PRONOUNCEMENT : 28/10/2013 3 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : IN THIS CASE, THE ASSESSEE HAD FILED AN APPEAL AG AINST THE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-I, AHMED ABAD (CIT(A) FOR SHORT) DATED 01/07/2003 PERTAINING TO BLOCK PE RIOD 1991-92 TO 2001- 02 AND THE APPEAL OF THE ASSESSEE WAS DISPOSED OF B Y THIS TRIBUNAL VIDE ORDER DATED 31/08/2007. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- THE APPELLANT MOST RESPECTFULLY SUBMIT AS UNDER: 1. THAT, THE LEARNED CIT(A) ERRED IN LAW AND ON F ACTS IN UPHOLDING THE ADDITION OF RS.112,362/- TOWARDS LATE RETURN SU BMISSION FOR IT(SS)A NO.376 /AHD/2003 BALDEVBHAI P.PATEL VS. ACIT BLOCK PERIOD AY 1991-92 TO 2001-02 - 2 - THE A.Y. 2000-01. THAT ON THE FACTS AND IN THE CIRC UMSTANCES OF THE CASE FULL RELIEF OUGHT TO HAVE BEEN GRANTED. 2. THE LD.CIT(A) WAS NOT JUSTIFIED IN SUSTAINING TH E LEVY OF SURCHARGE ON TAX PAYABLE U/S.113 OF THE INCOME TAX ACT. THAT UNDER THE PROVISIONS OF CH.XIV-B AND SECTION 113, L EVY OF SURCHARGE IS NOT SUSTAINABLE IN LAW. 3. THE APPELLANT REQUESTS THAT LEAVE MAY, BE GRANTE D TO ADD, ALTER OR AMEND THE GROUNDS OF APPEAL AT OR ANY TIME BEFOR E THE HEARING OF THE APPEAL. 2. SUBSEQUENTLY, THE REVENUE FILED A MISCELLANEOUS APPLICATION NO.262/AHD/2009. THE SAID MISCELLANEOUS APPLICATIO N WAS ALLOWED BY THIS TRIBUNAL VIDE ORDER DATED 07/03/2013 BY RECALL ING THE TRIBUNAL ORDER DATED 31/08/2007. DURING THE COURSE OF HEARING OF MISCELLANEOUS APPLICATION ON 01/03/2013, NONE APPEARED ON BEHALF OF THE ASSESSEE. THE REVENUE HAS PLACED ON RECORD PROOF OF SERVICE OF NO TICE OF HEARING. UNDER THESE CIRCUMSTANCES, THE APPEAL WAS TAKEN UP FOR HEARING IN THE ABSENCE OF THE ASSESSEE. 3. THE LD.CIT-DR SUBMITTED THAT THIS TRIBUNAL HA D DECIDED GROUND NO.2, THEREBY DIRECTING THE AO TO DELETE THE SURCHA RGE LEVIED ON THE ASSESSEE U/S.113 OF THE ACT. HE SUBMITTED THAT THI S ISSUE HAS BEEN DECIDED BY THE HONBLE SUPREME COURT RENDERED IN TH E CASE OF CIT VS. SURESH N.GUPTA REPORTED AT (2009) 297 ITR 322 (SC). 4. WE HAVE HEARD THE CIT-DR, PERUSED THE MATERIAL A VAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. WE FIND THAT THIS TRIBUNAL (C BENCH) HAD DECIDED GROUND NO.2 I N FAVOUR OF ASSESSEE BY RELYING ON THE DECISION OF SPECIAL BENCH IN THE CASE OF MERIT IT(SS)A NO.376 /AHD/2003 BALDEVBHAI P.PATEL VS. ACIT BLOCK PERIOD AY 1991-92 TO 2001-02 - 3 - ENTERPRISES VS. DCIT REPORTED AT 101 ITD 01 (HYD)(S B). IT WAS HELD BY THIS TRIBUNAL THAT AS THE SEARCH IN THIS CASE HAS TAKEN PLACE ON 16.11.2000, I.E. PRIOR TO THE LEVY OF SURCHARGE WIT H EFFECT FROM 1.6.2002. WE, THEREFORE, AFTER CONSIDERING THE RIVAL SUBMISSI ONS IN THE FACTS, THIS ISSUE IS DULY COVERED BY THE SPECIAL BENCH DECISION , RESPECTFULLY FOLLOWING THE SAID DECISION, ALLOW THE GROUND OF AP PEAL OF THE ASSESSEE AND DIRECT THE AO TO DELETE THE SURCHARGE LEVIED ON THE ASSESSEE U/S.113 OF THE ACT. WE FIND THAT THIS ORDER OF THE TRIBUN AL WAS PRIOR TO THE DECISION OF THE HONBLE SUPREME COURT RENDERED IN T HE CASE OF CIT VS. SURESH N.GUPTA(SUPRA). DURING THE COURSE OF HEARIN G OF THE MISCELLANEOUS APPLICATION, THE ASSESSEE CHOSE NOT T O APPEAR BEFORE THIS TRIBUNAL AND WHILE ALLOWING THE MISCELLANEOUS APPLI CATION, THIS TRIBUNAL HAD RELIED ON THE DECISION OF HONBLE SUPREME COURT RENDERED IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. RE PORTED AT 305 ITR 227 (SC). WE FIND THAT THE HONBLE SUPREME COURT I N THE CASE OF CIT VS. SURESH N.GUPTA(SUPRA) HAS HELD AS UNDER:- 23. FOR THE AFORESTATED REASONS, WE HOLD THAT EVEN WITH OUT THE PROVISO TO S. 113 (INSERTED VIDE FINANCE ACT 2002 W.E.F. 1S T JUNE, 2002), THE FINANCE ACT 2001 WAS APPLICABLE TO BLOCK ASSESSMENT UNDER CHAPTER XIV-B IN RELATION TO THE SEARCH INITIATED ON 17TH J AN., 2001 AND ACCORDINGLY SURCHARGE WAS LEVIABLE ON THE TAX AMOUN TING TO RS. 97,456 AT 17 PER CENT AMOUNTING TO RS. 16,504. WE ACCORDIN GLY ANSWER THE ABOVE QUESTION IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE. 4.1. THE HONBLE APEX COURT HAS FURTHER HELD AS UND ER:- 26. THERE IS ONE MORE REASON FOR REJECTING THE ABOVE SU BMISSION. PRIOR TO 1ST JUNE, 2002, IN SEVERAL CASES, TAX WAS PRESCR IBED SOMETIMES IN THE 1961 ACT AND SOMETIMES IN THE FINANCE ACT AND OFTEN IN BOTH. THIS MADE LIABILITY UNCERTAIN. IN THE PRESENT CASE, HOWE VER, THE RATE OF TAX IN IT(SS)A NO.376 /AHD/2003 BALDEVBHAI P.PATEL VS. ACIT BLOCK PERIOD AY 1991-92 TO 2001-02 - 4 - CASE OF BLOCK ASSESSMENT AT 60 PER CENT WAS PRESCRI BED BY S. 113 BUT THE YEAR OF THE FINANCE ACT IMPOSING SURCHARGE WAS NOT STIPULATED. THIS RESULTED IN THE ABOVE FOUR AMBIGUITIES. THEREFORE, CLARIFICATION WAS NEEDED. THE PROVISO WAS CURATIVE IN NATURE. HENCE, THE PROVISO INSERTED IN S. 113 MERELY CLARIFIES THAT OUT OF THE ABOVE FO UR DATES, THE RELEVANT DATE FOR APPLICABILITY OF THE FINANCE ACT WOULD BE THE YEAR IN WHICH THE SEARCH STOOD INITIATED UNDER S. 158BC. 4.2. THEREFORE, RESPECTFULLY FOLLOWING THE AFORESAI D DECISION OF THE HONBLE APEX COURT, GROUND NO.2 OF ASSESSEES APPEA L IS HEREBY REJECTED. AS A RESULT, GROUND NO.1 OF ASSESSEES APPEAL IS ALLOWED AND GROUND NO.2 IS REJECTED. 5. IN THE RESULT, ASSESSEES APPEAL STANDS PARTLY A LLOWED. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) (' #$) ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 29/ 10 /2013 6/.., .../ T.C. NAIR, SR. PS 3 - *$7 872$ 3 - *$7 872$ 3 - *$7 872$ 3 - *$7 872$/ COPY OF THE ORDER FORWARDED TO : 1. &) / THE APPELLANT 2. *+&) / THE RESPONDENT. 3. !! $ '9 / CONCERNED CIT 4. '9() / THE CIT(A)-I, AHMEDABAD 5. 7 #: *$ , , / DR, ITAT, AHMEDABAD 6. :;< =. / GUARD FILE. 3' 3' 3' 3' / BY ORDER, +7$ *$ //TRUE COPY// > >> >/ // / !' !' !' !' ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD