The ACIT, Central Circle-2, Baroda V. Shri Mahendra R.Shah, Baroda

MA 275/AHD/2009

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8501 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-06-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 17-08-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , . ! ,'# ' $ BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER MA NO.275/AHD/2009 ( ./ IN I.T(SS).A. NO.227/AHD/2004) ( BLOCK PERIOD : 1.4.1995 TO 20.09.2001 ) ACIT CENTRAL CIR-2 BARODA ! ! ! ! / VS. SHRI MAHENDRA R.SHAH 6-7, MEGHDHANUSH SOCIETY OLD PADRA ROAD BARODA & '# ./'( ./ PAN/GIR NO. : ABWPS 4292 D ( &) / // / APPLICANT ) .. ( *+&)/ RESPONDENT ) &) , '/ APPLICANT BY : SHRI VINOD TANWANI, SR.D.R. *+&) - , ' / RESPONDENT BY : -NONE- !. - /#/ // / DATE OF HEARING : 15/6/12 0 1 - /# / DATE OF PRONOUNCEMENT : 22/06/12 '2/ O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS MISCELLANEOUS PETITION HAS BEEN FILED BY TH E REVENUE ON 17.8.2009 ARISING FROM THE ORDER OF THE ITAT BENCH A AHMEDABAD AS REFERRED IN THE NOMENCLATURE DATED 08/12/2006. THE ONLY GRIEVANCE OF THE REVENUE IS THAT THE LEVY OF SURCHARGE WAS DISMI SSED BY THE TRIBUNAL, HOWEVER, IN VIEW OF A RECENT JUDGEMENT OF THE HON'B LE SUPREME COURT IN THE CASE OF CIT VS. SURESH N. GUPTA REPORTED AT 297 ITR 322 (SC), THE VIEW HAS BEEN TAKEN IN FAVOUR OF THE REVENUE. FOR READY REFERENCE, RELEVANT PORTION OF THE MISCELLANEOUS PETITION IS R EPRODUCED BELOW:- MA NO.275/AHD/2009 (IN IT(SS)A NO.227/AHD/2004) THE ACIT VS. SH.MAHENDRA R.SHAH BLOCK PERIOD 1.4.1995 TO 20.09.2001 - 2 - 2. IT IS SUBMITTED THAT IN THE ORDER OF THE ITAT, BENCH-A AHMEDABAD IN ITA NO.227/AHD/2004 DATED 08/12/2006, THE ASSISTANT COMMISSIONER CENTRAL CIRCLE-2, BARODA V/S . MAHENDRA R SHAH FOR THE BLOCK PERIOD 01/04/1995 TO 20/09/2001 THE DEPARTMENTS APPEAL ON THE ISSUE OF LEVY OF SURCHAR GE IS DISMISSED HOLDING THAT SURCHARGE IS NOT LEVIABLE IN CASE OF S EARCH CONDUCTED PRIOR TO 01/06/2002. THE EXPLICIT PROVISION CONTAI NED IN PART-I OF THE FIRST SCHEDULE OF THE ACT, SURCHARGE IS LEVIABL E IN THE CASE OF SEARCH CONDUCTED PRIOR TO 01/06/2002 ALSO. IN THE RECENT JUDGMENT, THE HONBLE SUPREME COURT IN THE CASE OF CIT V/S. SURESH GUPTA 297 ITR 322 (SC) HAS HELD THAT THE AME NDMENT SPECIFYING THE RATE OF SURCHARGE FOR SEARCH FROM 1/ 6/2002, BEING CLARIFICATORY, WAS HELD TO BE RETROSPECTIVELY EFFEC TIVE AND APPLICABLE TO SEARCHES CONDUCTED EVEN PRIOR TO 1 ST JUNE 2002. IN THIS CASE, SEARCH WAS CONDUCTED ON 20/09/2001 AND H ENCE SURCHARGE @ 2% AS APPLICABLE IN THE YEAR 2002-03. 2. ON THE DATE OF HEARING, NO ONE WAS PRESENT FROM THE SIDE OF THE RESPONDENT-ASSESSEE. WE HAVE HEARD LD.SR.DR MR.VIN OD TANWANI. LD.DR HAS INFORMED THAT THE REVENUE HAS RAISED GROU ND NO.3 BEFORE THE TRIBUNAL AS FOLLOWS:- 3. THE LD.C.I.T.(A) HAS, ON THE FACTS OF THE CASE AND IN LAW ERRED IN DELETING THE SURCHARGE IN SPITE OF EXPLICIT PROV ISION CONTAINED IN PART I OF THE FIRST SCHEDULE OF THE FINANCE ACT. 2.1. HOWEVER, THIS GROUND WAS NOT DECIDED IN FAVOUR OF THE REVENUE, BUT THE CURRENT POSITION IS THAT THE ISSUE OF SURCH ARGE HAS NOW BEEN SETTLED BY HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SUR ESH N.GUPTA 297 REPORTED AS ITR 322 (SC), THEREFORE TO THIS EXTENT, THE MISCELLANEOUS PETITION OF THE REVENUE IS HEREBY ALLOWED AND PARAG RAPH NO.36 OF THE MA NO.275/AHD/2009 (IN IT(SS)A NO.227/AHD/2004) THE ACIT VS. SH.MAHENDRA R.SHAH BLOCK PERIOD 1.4.1995 TO 20.09.2001 - 3 - IMPUGNED ORDER OF THE TRIBUNAL DATED 08/12/2006(SUP RA) IS HEREBY AMENDED. 3. IN THE RESULT, MISCELLANEOUS APPLICATION FILE D BY THE REVENUE IS ALLOWED. SD/- SD/- ( . ! ) ( ) '# ( A. MOHAN ALANKAMONY ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIA L MEMBER AHMEDABAD; DATED 22/ 06 /2012 3/..!, .!../ T.C. NAIR, SR. PS '2 - *4 5'41 '2 - *4 5'41 '2 - *4 5'41 '2 - *4 5'41/ COPY OF THE ORDER FORWARDED TO : 1. &) / THE APPLICANT 2. *+&) / THE RESPONDENT 3. 6 / CONCERNED CIT 4. 6() / THE CIT(A)-II, AHMEDABAD 5. 49: *! , , / LEARNED DEPARTMENTAL REPRESENTATIVE, ITAT, AHMEDABAD 6. :; <. / GUARD FILE. '2! '2! '2! '2! / BY ORDER, +4 * //TRUE COPY// = == =/ // / ' ' ' ' ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION 15.6.12 (DICTATION-PAD 4 PAGES ATTACHED) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 18.6.12 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S22.6.12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 22.6.12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER