Smt.N.M.Suhara, Ernakulam V. The ACIT, Ernakulam

MA 4/COCH/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2971 (ITAT-COCHIN)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-05-2015
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 08-05-2015
• Assessment Year: misc
• Appeal Filed On: 29-01-2015
• Court: TRIBUNAL
• Department Lawyers: K K JOHN
• Assessee Lawyers: DAVIS CHACKKALAKKAL
• Keywords: Block assessment
• Section: 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI V.DURGA RAO, JM AND B.R.BASKARAN , AM M.P. NO. 03/COCH/2015 (ARSG. OUT OF I.T.(SS)A NO.19/COCH/2004 BLOCK PERIOD : 01/04/1990 TO 25/10/2000 SHRI M.A. ASHRAF, MAHIMA JEWELLERY, BROADWAY, ERNAKULAM. [PAN: AAZPA 9817A] VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-1, ERNAKULAM. (ASSESSEE-APPELLANT) (REVENUE-RESPONDENT) M.P. NO. 04/COCH/2015 (ARSG. OUT OF I.T.(SS)A NO.107/COCH/2015) BLOCK PERIOD : 01/04/1990 TO 25/10/2000 N.M. SUHARA, MAHIMA JEWELLERY, BROADWAY, ERNAKULAM. [PAN: ADSFS 8428D] VS. THE INCOME-TAX OFFICER, WARD-4, ERNAKULAM. (REVENUE-APPELLANT) (ASSESSEE-RESPONDENT) ASSESSEE BY SHRI DAVIS CHACKKALAKKAL, ADV. REVENUE BY SHRI K.K. JOHN, SR. DR DATE OF HEARING 08/05/2015 DATE OF PRONOUNCEMENT 08/05/2015 M.P. NOS.03&04/COCH/2015 2 O R D E R PER B.R. BASKARAN, ACCOUNTANT MEMBER: BOTH THE MISCELLANEOUS APPLICATIONS HAVE BEEN FILED BY T HE RESPECTIVE ASSESSEES SEEKING RECTIFICATION OF THE COMMON ORDER DATED 15.03.2011 PASSED BY THE TRIBUNAL IN RESPECT OF THE APP EALS REFERRED SUPRA. 2. THE LD COUNSEL APPEARING FOR THE ASSESSEE SUBMITT ED THAT THE IMPUGNED ASSESSMENTS WERE FRAMED U/S 158BC OF THE ACT CONSEQ UENT TO THE SEARCH CONDUCTED IN THE HANDS OF THE ASSESSEES CITED AB OVE ON 25.10.2000. THE ASSESSING OFFICER, WHILE COMPUTING THE T AX, ALSO LEVIED SURCHARGE AS PER THE PROVISO TO SEC. 113 OF THE ACT . HE SUBMITTED THAT THE LEVYING OF SURCHARGE WAS MADE MANDAT ORY BY THE PROVISO TO SEC. 113 WHICH WAS INSERTED BY THE FINANCE ACT, 2002 W.E.F. 1.6.2002. ACCORDINGLY THE ASSESSEES CONTENDED BEFORE THE AO THAT THE SURCHARGE U/S 113 CANNOT BE LEVIED IN THE INSTANT CASES, AS THE BLOCK ASSESSMENTS PERTAIN TO THE PERIOD PRIOR TO 1.6.2002. BU T THE SAME DID NOT FIND FAVOUR WITH THE AO. THE ASSESSEES CHALLENGED TH E LEVY OF SURCHARGE IN THE APPEALS FILED BEFORE LD CIT(A) AND TH E FIRST APPELLATE AUTHORITY DELETED THE SAME. THE REVENUE PREFERRED A PPEAL BEFORE THE TRIBUNAL ON THIS ISSUE, BUT THE TRIBUNAL CONFIRMED THE SURCHARGE LEVIED BY THE AO, BY FOLLOWING THE DECISION RENDERED BY HONB LE SUPREME COURT IN THE CASE OF CIT VS. SURESH N GUPTA (297 ITR 32 2)(SC), WHEREIN IT WAS HELD THAT THE PROVISO INSERTED TO SEC. 11 3 OF THE ACT BY FINANCE ACT, 2002 W.E.F. 1.6.2002 IS CURATIVE IN NATURE AND HENCE IT M.P. NOS.03&04/COCH/2015 3 SHALL HAVE RETROSPECTIVE APPLICATION. SUBSEQUENTLY THE LARGER BENCH OF THE HONBLE SUPREME COURT HAS CONSIDERED THE VERY SAME ISSUE IN THE CASE OF CIT VS. VATIKA TOWNSHIP (P) LTD (2014)(49 TAXMA NN.COM 249)(SC) AND THE HONBLE SUPREME COURT HAS HELD THAT THE PROVISO APPENDED TO SEC. 113 BY FINANCE ACT, 2002 IS TO OPERATIV E PROSPECTIVELY AND ACCORDINGLY OVERRULED THE DECISION REND ERED IN THE CASE OF SURESH N GUPTA (SUPRA). 3. THE LD A.R SUBMITTED THAT THE SURCHARGE IMPOSED BY THE PROVISO TO SEC. 113 SHALL NOT BE LEVIABLE IN THE CASE OF BLOCK ASSE SSMENTS PERTAINING TO THE PERIOD PRIOR TO 1 ST JUNE, 2002. HE FURTHER SUBMITTED THAT THE BLOCK ASSESSMENTS MADE IN THE HANDS OF THE ASSESSEE S HEREIN PERTAINED TO THE PERIOD FROM 01.04.1990 TO 25.10.20 00, I.E., PRIOR TO 1 ST JUNE, 2002. ACCORDINGLY HE SUBMITTED THAT THE SURCHARG E SHALL NOT BE LEVIABLE IN THE CASE OF THE ASSESSEES HEREIN. 4. HE FURTHER SUBMITTED THAT THE DECISION RENDERED BY HONBLE SUPREME COURT IN THE CASE OF SURESH N GUPTA (SUPRA) HAS SINCE BEEN OVERRULED BY THE HONBLE SUPREME COURT IN THE CASE OF VATIKA TOWNSHIP (P) LTD. ACCORDINGLY HE SUBMITTED THAT THE DE CISION RENDERED BY THE TRIBUNAL, VIDE PARAGRAPH 12 AND 21 OF THE OR DER, SUFFER FROM MISTAKE APPARENT FROM RECORD, SINCE IT WAS AGAINST THE D ECISION OF HONBLE SUPREME COURT RENDERED IN THE CASE OF VATIKA TO WNSHIP (P) LTD (SUPRA). ACCORDINGLY HE PRAYED THAT THE COMMON ORDER O F THE TRIBUNAL MAY BE AMENDED. 5. THE LD D.R DID NOT OBJECT TO THE PLEA RAISED BY THE ASSESSEES IN THESE PETITIONS. M.P. NOS.03&04/COCH/2015 4 6. HAVING HEARD THE RIVAL SUBMISSIONS, WE ARE OF TH E VIEW THAT THERE IS MERIT IN THE CONTENTIONS OF THE ASSESSEES. SINCE THE HON BLE SUPREME COURT ONLY INTERPRETS THE PROVISIONS AND HENCE ITS DECISION SHALL BE APPLICABLE FROM THE DATE OF INSERTION OF THE RELEVANT PROVISIONS. SINCE THE DECISION RENDERED BY HONBLE SUPRE ME COURT IN THE CASE OF SURESH N GUPTA (SUPRA) HAS BEEN OVERRULED B Y THE SUBSEQUENT LARGER DECISION OF THE HONBLE SUPREME COURT RENDERED IN THE CASE OF VATIKA TOWNSHIP (P) LTD, THE LATEST DECISION NEEDS TO BE FOLLOWED TO DECIDE THE ISSUE OF SURCHARGE LEVIABLE U/S 11 3 OF THE ACT. ACCORDINGLY, WE AGREE WITH THE CONTENTIONS OF THE ASSESSEE THAT THE IMPUGNED ORDER OF THE TRIBUNAL SUFFERS FROM MISTAKE IN RESPECT OF THE ISSUE RELATING TO LEVY OF SURCHARGE U/S 113 OF THE ACT, S INCE THE SAME IS CONTRARY TO THE SUBSEQUENT DECISION RENDERED BY THE HON BLE SUPREME COURT. 7. ACCORDINGLY, THE EXISTING PARAGRAPH 12 OF THE I MPUGNED COMMON ORDER DATED 15.03.2011 IS DELETED AND IN THAT PLACE, FOLLOWING PARAGRAPH SHALL BE SUBSTITUTED:- 12. THE REVENUES SECOND GROUND IS IN RESPECT OF DELE TION OF SURCHARGE U/S 113 OF THE ACT. SINCE THE DECISION RENDERE D BY THE LD CIT(A) IS IN ACCORDANCE WITH THE DECISION RENDERED BY HONBLE SUPREME COURT IN THE CASE OF VATIKA TONWSHIP (P ) LTD (2014)(49 TAXMANN.COM 249)(SC), WE CONFIRM THE ORDER OF LD CIT(A) ON THIS ISSUE. 8. THE EXISTING PARAGRAPH 21 OF THE IMPUGNED COMM ON ORDER DATED 15.03.2011 IS DELETED AND IN THAT PLACE, FOLLOWING P ARAGRAPH SHALL BE SUBSTITUTED:- 21 THE LAST ISSUE RAISED, VIDE GROUND NOS. 4 THROUGH 7 OF THE REVENUE APPEAL RELATES TO THE LEVY OF SURCHARGE ON THE TAX ON UNDISCLOSED INCOME ON THE BASIS OF THE PROVISO TO SEC. 113 OF THE ACT. SINCE THE DECISION RENDERED BY THE LD CIT(A) IS IN ACCORDANCE WITH THE DECISION RENDERED BY HONBLE SUPREME M.P. NOS.03&04/COCH/2015 5 COURT IN THE CASE OF VATIKA TONWSHIP (P) LTD (2014)(4 9 TAXMANN.COM 249)(SC), WE CONFIRM THE ORDER OF LD CIT( A) ON THIS ISSUE. 9. THE EXISTING PARAGRAPH 22 OF THE IMPUGNED CO MMON ORDER DATED 15.03.2011 IS DELETED AND IN THAT PLACE, FOLLOWING P ARAGRAPH SHALL BE SUBSTITUTED. 22. IN THE RESULT, THE ASSESSEES APPEAL AS WELL AS RE VENUES APPEAL ARE PARTLY ALLOWED. 10. THE MISCELLANEOUS APPLICATIONS FILED BY BOTH THE ASSESSEES ARE DISPOSED OF ACCORDINGLY. 11. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIO NS ARE ALLOWED. PRONOUNCED ACCORDINGLY IN THE OPEN COURT ON 08-05-2015 . SD/- SD/- (DURGA RAO) (B.R. BASKARAN) JUDICIAL MEMBER ACC OUNTANT MEMBER PLACE: KOCHI DATED: 8TH MAY, 2015 GJ COPY TO: 1. SHRI M.A. ASHRAF, MAHIMA JEWELLERY, BROADWAY, ERN AKULAM. 2. SMT. N.M. SUHARA, MAHIMA JEWELLERY, BROADWAY, ERN AKULAM. 3. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRA L CIRCLE-1, ERNAKULAM. 4. THE I.T.O., WARD-4, ERNAKULAM. 5.THE COMMISSIONER OF INCOME-TAX(APPEALS)-I, KOCHI. M.P. NOS.03&04/COCH/2015 6 6. THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI 7. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 8. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T., COC HIN M.P. NOS.03&04/COCH/2015 7