SUBHASH JAIN, Ajmer V. ACIT, Ajmer

MA 29/JPR/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3035 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 26-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS NEENA JEPH
• Keywords: Rectification of order; Search and seizure
• Section: 263; 132; 154

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM M.A. NO. 29/JP/2014 (ARISING OUT OF M.A. NO. 17/JP/2011 IN ITSSA NO. 16 5, 166/JP/2005) ASSTT. YEARS-BLOCK PERIOD 1991-1992 TO 2000-2001 LATE SHRI SUBHASH JAIN, AJMER THROUGH LEGAL HEIR DEEPAK JAIN, AJMER. CUKE VS. A.C.I.T., CENTRAL, AJMER. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO. ABDPJ 5979 K VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : NONE JKTLO DH VKSJ LS @ REVENUE BY : MRS. NEENA JEPH (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 27/03/2015 ?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 10/04/2015 VKNS'K @ ORDER PER: T.R. MEENA, A.M. THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATI ON U/S 254(2) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AGAINST THE ORDER OF THIS BENCH OF ITAT, JAIPUR IN ITA NO. 17/JP/2011, WHICH WAS PASSED ON 11/07/2014. M.A. NO. 29/JP/2014_ SUBHASH JAIN VS. ACIT 2 2. FACTS OF THE CASE ARE THAT IN THIS CASE BLOCK AS SESSMENT WAS COMPLETED FOR THE BLOCK PERIOD 1991-92 TO 2000-01 UP TO 09/08 /2000 PASSED ON 25/01/2008. THE DEPARTMENT HAS CHARGED SURCHARGE ON TAX AMOUNT. THE ASSESSEE FILED M.A. AGAINST THE ORDER OF THE ASSESS ING OFFICER, WHICH HAS BEEN REJECTED BY THE HONBLE BENCH BY CONSIDERING THE HO N'BLE SUPREME COURT DECISION IN THE CASE OF CIT VS. SURESH N. GUPTA IN CASE NO. 32 OF 2008 ARISING OUT OF SLP (C) NO. 4617/2007 DATED 07/01/2008 WHEREI N A LEVY OF SURCHARGE HAS BEEN HELD JUSTIFIED IN CASES OF SEARCHES CONDUC TED EVEN BEFORE 01/6/2002 DECLARING THE PROVISO CLARIFICATORY IN NATURE BUT T HE LARGER BENCH OF THE HON'BLE SUPREME COURT IN CASE OF CIT VS. VATIKA TOWNS HIP P. LTD. (2014) 367 ITR 466 (SC) HAS ALSO DECIDED THAT SURCHARGE CANNOT BE LEVIED RETROSPECTIVELY. THE APPELLANT HAS GIVEN BRIEF FACTS OF THE CASE IN P ETITION ARE AS UNDER:- (I) SEARCH AND SEIZURE OPERATION U/SEC. 132 WERE CAR RIED ON AT ASSESSEE PREMISES AND INCOMPLIANCE THE ASSESSEE FIL ED ITS RETURN FOR THE BLOCK PERIOD AND ASSESSMENT WERE COMPLETED U /SEC. 158BA WITHOUT THE LEVY OF SURCHARGE ON THE TAX LIABI LITY. (II) LATER ON THE ASSESSING OFFICER SEEK TO AMEND H IS APPARENT MISTAKE BY PASSING A RECTIFICATION ORDER U/SEC. 154 WHICH WAS CHALLENGED BY ASSESSEE BEFORE THE CIT APPEALS WHERE T HE CIT, APPEALS ALLOWED THE APPEAL OF THE ASSESSEE ON THE GR OUND THAT M.A. NO. 29/JP/2014_ SUBHASH JAIN VS. ACIT 3 LEVY OF SURCHARGE WAS A DEBATABLE ISSUE I.E. SURCHAR GE COMPONENT WAS REMOVED FROM THE CALCULATION OF TAX LI ABILITY. (III) LATER THE CIT ISSUED NOTICE U/S 263 TO THE ASS ESSEE AND CANCELLED THE ORDER OF ASSESSING OFFICER FOR NON LE VY OF SURCHARGE CONSIDERING THE PROVISIONS OF SECTION 113 AND SECTI ON 4 OF THE ACT. (IV) THE ASSESSEE FILED AN APPEAL BEFORE THE ITAT AND IT WAS HELD THAT PROVISO TO SECTION 113 OF THE ACT CANNOT BE HE LD TO BE DECLARATORY OR CLARIFICATORY IN NATURE AND WAS PROSP ECTIVE IN ITS OPERATIONS. (V) AGAINST THE DECISION OF ITAT THE REVENUE FILED T HE APPEAL WITH HIGH COURT WHERE IT WAS DECIDED THAT PROVISO INSERTED IN SECTION 113 OF THE ACT BY THE FINANCE ACT, 2002 WAS PROSPECT IVE IN NATURE AND THE SURCHARGE LEVIABLE IN THE INSTANT CA SE IS NOT APPLICABLE. (VI) THIS DECISION OF THE HIGH COURT HAS BEEN DECIDE D BY THE SUPREME COURT AS UNDER:- RETROSPECTIVELY IT ATTACHED TO BENEFIT THE PERSON IN CONTRADISTINCTION TO THE PROVISION IMPOSING SOME BU RDEN OR LIABILITY WHERE THE PRESUMPTION ATTACHES TOWARDS PROSPECTIVELY. IN THE INSTANT CASE, THE PROVISO ADD ED TO SECTION 113 OF THE ACT IS NOT BENEFICIAL TO THE ASS ESSEE. ON M.A. NO. 29/JP/2014_ SUBHASH JAIN VS. ACIT 4 THE CONTRARY, IT IS PROVISION WHICH IS ONEROUS TO TH E ASSESSEE. THEREFORE, IN A CASE LIKE THIS, WE HAVE PRO CEED WITH THE NORMAL RULE OF PRESUMPTION AGAINST RETROSPE CTIVE OPERATION. THUS, THE RULE AGAINST RETROSPECTIVE OPER ATION IS A FUNDAMENTAL RULE OF LAW THAT NO STATUTE SHALL BE C ONSTRUED TO HAVE A RETROSPECTIVE OPERATION UNLESS SUCH A CON STRUCTION APPEARS VERY CLEARLY IN THE TERMS OF THE ACT OR ARI SES BY NECESSARY AND DISTINCT IMPLICATION. DOGMATICALLY FR AMED, THE RULE IS NO MORE THAN A PRESUMPTION, AND THUS COULD BE DISPLACED BY OUT WEIGHING FACTORS. 3. NO ONE APPEARED ON BEHALF OF THE APPELLANT BUT F ACTS OF THE CASE AND RULING ON THIS ISSUE OF THE HON'BLE SUPREME COURT I N THE CASE OF CIT VS VATIKA TOWNSHIP PRIVATE LTD. (SUPRA) HAS BEEN CONSIDERED. IT IS FOUND THAT THE LARGER BENCH HAS OVERRULED OWN DECISION OF CIT VS SURESH N GUPTA (SUPRA) AND HELD THAT AMENDMENT IN SECTION 113 IS NOT RETROSPECTIVE BUT PROSPECTIVE. THIS BENCH ALSO HAS DISMISSED THE M.A. FILED BY THE REVE NUE IN CASE OF ACIT VS. SHRI DEENA NATH JAIN IN M.A. NO. 18/JP/2011 FOR THE SAME BLOCK PERIOD IN THE GROUP CASES OF THE ASSESSEE VIDE ORDER DATED 31/10/ 2014. BEING LAW OF THE LAND ON THIS ISSUE, IS BINDING ON THE LOWER COURT, T HEREFORE, WE MODIFY OUR ORDER U/S 254(2) OF THE ACT BEING APPARENT MISTAKE AS LEGAL POSITION HAS BEEN CHANGED ON THIS ISSUE BY THE HIGHEST COURT OF THIS LAND, THEREFORE, IT IS AN M.A. NO. 29/JP/2014_ SUBHASH JAIN VS. ACIT 5 APPARENT MISTAKE ON RECORD. THE HON'BLE SUPREME COUR T IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. (2008) 305 ITR 27 (SC) HAS HELD AS UNDER: A PATENT, MANIFEST AND SELF-EVIDENT ERROR WHICH DOE S NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMEN TS TO ESTABLISH IT, CAN BE SAID TO BE AN ERROR APPARENT O N THE FACE OF THE RECORD AND CAN BE CORRECTED WHILE EXERCISING CE RTIORARI JURISDICTION. AN ERROR CANNOT BE SAID TO BE APPAREN T ON THE FACE OF THE RECORD IF ONE HAS TO TRAVEL BEYOND THE RECOR D TO SEE WHETHER THE JUDGMENT IS CORRECT OR NOT. AN ERROR APP ARENT ON THE RECORD MEANS AN ERROR WHICH STRIKES ONE ON MERE LOOKING AND DOES NOT NEED A LONG DRAWN OUT PROCESS OF REASON ING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS . SUCH ERROR SHOULD NOT REQUIRE ANY EXTRANEOUS MATTER TO S HOW ITS INCORRECTNESS. TO PUT IT DIFFERENTLY, IT SHOULD BE S O MANIFEST AND CLEAR THAT NO COURT WOULD PERMIT IT TO REMAIN ON REC ORD. IF THE VIEW ACCEPTED BY THE COURT IN THE ORIGINAL JUDGMENT IS ONE OF POSSIBLE VIEWS, THE CASE CANNOT BE SAID TO BE COVERE D BY AN ERROR APPARENT ON THE FACE OF THE RECORD. WHERE AFT ER THE APPELLATE TRIBUNAL RENDERED ITS DECISION ON APPEAL, A MISCELLANEOUS APPLICATION WAS FILED BY THE ASSESSEE UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961, STATING THAT A DECISION OF THE JURISDICTIONAL HIGH COURT WAS NOT B ROUGHT TO THE NOTICE OF THE TRIBUNAL: HELD, THAT THERE WAS A MISTA KE APPARENT FROM THE RECORD WHICH REQUIRED RECTIFICATION. M.A. NO. 29/JP/2014_ SUBHASH JAIN VS. ACIT 6 IN VIEW OF THE RULING OF THE HON'BLE SUPREME COURT, WE ALLOW THE ASSESSEES M.A. 5. IN THE RESULT, THE MISC. APPLICATIONS OF THE ASS ESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10/04/2015. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 10 TH APRIL, 2015 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- LATE SHRI SUBHASH JAIN, AJMER THROUGH LEGAL HEIR DEEPAK JAIN, AJMER. 2. IZR;FKHZ @ THE RESPONDENT- THE A.C.I.T., CENTRAL, AJMER. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (M.A. 29/JP/2014) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR