The ITO, Ward-9(2), Ahmedabad V. THE ACIT, CEN. CIR. -1(3), Ahmedabad

MA 262/AHD/2009

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9909 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-03-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 21-12-2012
• Assessment Year: misc
• Appeal Filed On: 31-07-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE SHRI D. K. TYAGI, JM AND SHRI A. MOHAN ALAN KAMONY, AM) MA NO.262/AHD/2009 (IN IT (SS) A NO.376/AHD/2003 FOR BP: 1991-92 TO 20 01-02) THE INCOME TAX OFFICER, WARD 9(2),AHMEDABAD VS SHRI BALDEVBHAI P. PATEL, A-9, GALAXY VIEW APPTT., NR. ANKUR ROAD, NARANPURA, AHMEDABAD P. A. NO. ABYPP 8210 E (APPLICANT) (RESPONDENT) APPLICANT BY SHRI D. K. SINGH, SR. DR RESPONDENT BY NONE DATE OF HEARING: 01-03-2013 DATE OF PRONOUNCEMENT: 07-03-2013 O R D E R PER A. MOHAN ALANKAMONY: THIS M.A. IS FILED BY THE REVENUE AGGRIEVED BY THE ORDER OF THE TRIBUNAL DATED 31-08- 2007 PASSED IN IT(SS)A NO.376/AHD/2003, FOR THE BLOCK PERIOD 1991- 92 TO 2001-02. 2. THE REVENUE IN ITS MISC. APPLICATION SUBMITTED A S UNDER: 1. THAT THE ASSESSING OFFICER HAS MADE ADDITION OF RS.1,12,362/- IN THE COMPUTATION OF UNDISCLOSED INCOME BY THE ASSESSEE F OR THE BLOCK PERIOD. 2. THAT THE ASSESSEE WENT IN APPEAL BEFORE THE LD. CIT(A)-I, AHMEDABAD WHO FOUND FAVOUR TO THE REVENUES ACTION AND DISALL OWED THE ASSESSEES APPEAL. 3. DISSATISFIED WITH THE ORDER OF THE LD. CIT(A)-I, AHMEDABAD, THE ASSESSEE FILED AN APPEAL BEFORE THE HONBLE ITAT, A HMEDABAD, BENCH- C, AHMEDABAD. 2 4. THE HONBLE ITAT HAS DIRECTED THE ASSESSING OFFI CER NOT TO LEVY SURCHARGE U/S. 113 OF THE I. T. ACT. 5. THE HONBLE SUPREME COURT IN THE CASE OF CIT (CE NT.)-II VS. SURESH N. GUPTA REPORTED IN 2008 (TIDC-02-SC-IT) CIVIL APPEAL NO.32 OF 2008 DATED 07/01/2008 HELD THAT SURCHARGE U/S. 113 IS LE VIABLE. 6. IT IS THEREFORE PRAYED THAT THE ORDER OF THE HON BLE ITAT MAY BE KINDLY TO RECTIFY THE ORDER UNDER REFERENCE AND TO RESTORE THE SURCHARGE LEVIED BY THE A. O. 3. BEFORE US, THE LEARNED DR RELYING ON THE DECISIO N OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS SURESH N. GUPTA IN CIVIL APPEAL NO.32 OF 2008 ARGUED THAT SURCHARGE U/S 113 OF THE ACT IS LEVIABLE ON THE ASSESSEE. HE HAS ALSO PRODUCED A COPY OF THE SA ID DECISION AND PRAYED THAT THE AFORESAID ORDER OF THE TRIBUNAL DAT ED 31-08-2007 CITED SUPRA; DELETING THE SURCHARGE LEVIED ON THE A SSESSEE U/S 113 OF THE ACT MAY BE RECALLED. 4. NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE T IME OF HEARING. 5. WE HAVE HEARD THE LEARNED DR, PERUSED THE ORDER OF THE TRIBUNAL AND GONE THROUGH THE CASE LAW CITED BY THE LEARNED DR. ON CAREFUL PERUSAL OF THE AFORESAID DECISION OF THE HO NBLE SUPREME COURT, WE ARE OF THE VIEW THAT THOUGH THE TRIBUNAL HAS PASSED THE ORDER ON 31-08-2007 PRIOR TO THE DECISION OF THE HO NBLE SUPREME COURT DATED 07-01-2008 REPORTED IN 297 ITR 322 (SC) , THE ISSUE WITH RESPECT TO SURCHARGE APPEARS TO BE APPLICABLE IN TH IS CASE AND BOTH THE PARTIES HAVE NOT DISPUTED THE SAME. CONSIDERING THE DECISION IN THE CASE OF ACIT VS SAURASHTRA KUTCH STOCK EXCHANGE LTD., REPORTED 3 IN 305 ITR 227 (SC) WHEREIN IT IS HELD THAT FAILURE TO APPLY JUDGMENT OF JURISDICTIONAL HIGH COURT IS A MISTAKE APPARENT ON RECORD. THEREFORE, THE TRIBUNAL HAS JURISDICTION TO RECTIFY ITS ORDER U/S 254 (2) OF THE ACT, WE FIND FORCE IN THE SUBMISSION OF THE LEARNED DR. ACCORDINGLY, WE HEREBY RECALL OUR ORDER DATED 31-08 -2007 AND DIRECT THE REGISTRY TO POST THE APPEAL IN THE REGULAR COUR SE, INTIMATING BOTH THE PARTIES WELL IN ADVANCE. 6. IN THE RESULT, THE MISC. APPLICATION OF THE REVE NUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07-03-2013. SD/- SD/- (D. K. TYAGI) JUDICIAL MEMBER (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER LAKSHMIKANTA DEKA/ LAKSHMIKANTA DEKA/ LAKSHMIKANTA DEKA/ LAKSHMIKANTA DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMED ABAD 1. DATE OF DICTATION: -DIRECT ON COMPUTER 04-03-2 013 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER:04-03-2013 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: