ACIT, V. Dr.Raghunath A. Shinde,

MA 74/PUN/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5033 (ITAT-PUNE)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-09-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 02-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY DAMLE
• Assessee Lawyers: S P JOSHI
• Keywords: Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI I.C.SUDHIR JM AND SHRI D. KARUNAKARA RA O AM M.A. NO. 74/PN/2010 (ARISING OUT OF ITA NO. 692/PN/02) (BLOCK PERIOD : 1989-90 TO 1999-2000) ACIT, CENTRAL CIRCLE 3(3), PUNE APPLICANT VS. DR. RAGHUNATH A. SHINDE, SANGLI RESPONDENT PAN : NOT AVAILABLE APPELLANT BY : SHRI ABHAY DAMLE RESPONDENT BY : SHRI S.P. JOSHI ORDER PER I.C. SUDHIR JM THIS MISCELLANEOUS APPLICATION IS FILED BY THE REV ENUE AND THE SAME IS ARISING OUT OF THE ORDER OF THE TRIBUNAL VIDE ITA N O. 692/PN/02 DT. 10 TH FEBRUARY, 2006. THE REVENUE IS OF THE OPINION THAT THE DECIS ION OF THE TRIBUNAL IN NOT CONFIRMING THE LEVY OF SURCHARGE U/S.113 OF THE INC OME-TAX ACT, NEEDS RECTIFICATION IN VIEW OF THE HONBLE SUPREME COURT S DECISION IN THE CASE OF ALLIED MOTORS (P) LTD. V/S. CIT (1997), 224 ITR 677 BE APP LIED TO THE PRESENT CASE AND THE HONBLE ITAT BE PLEASED TO DECIDE THAT PROVISO TO SECTION 113 BROUGHT IN BY THE FINANCE ACT, 2002 W.E.F. 01.06.2002 HAS A RETRO SPECTIVE EFFECT AND IS APPLICABLE TO SEARCHES CONDUCTED PRIOR TO THAT PERI OD AND COVERED UNDER BLOCK ASSESSMENT. FURTHER, IN THE CASE OF CIT VS SURESH N. GUPTA 297 ITR 322 (SC) WHERE THE HONBLE COURT HELD THAT THE AMENDED PROVI SIONS OF SECTION 113 OF THE ACT ARE CLARIFICATORY IN APPLICATION AND THEREFORE RETROSPECTIVE IN NATURE. 2. DURING THE PROCEEDING BEFORE US ON THIS MA, IT I S BROUGHT TO OUR NOTICE THAT THE MATTER IS STILL DEBATABLE ISSUE IN VIEW OF THE ANOTHER JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS VATIKA TOWNSHIP P. LTD., 314 ITR 338 (SC). THE RATIO OF THE SAID JUDGMENT READS AS UNDER. IN RELATION TO BLOCK ASSESSMENT IN SEARCH CASES, A PROVISO WAS ADDED WITH EFFECT FROM JUNE 1, 2002, TO SECTION 113 OF TH E INCOME-TAX ACT, 1961, TO THE EFFECT THAT THE TAX SHALL BE INCREASED BY A SURCHARGE. ON A CLAIM BY THE DEPARTMENT THAT THE PROVISO WAS RETROSPECTIVE, THE SUPREME COURT REFERRED THE MATTER TO A LARGER BENCH . 3. IT IS EVIDENT FROM THE ABOVE SAID JUDGMENT OF TH E HONBLE SUPREME COURT IN THE CASE OF VATIKA TOWNSHIP P. LTD (SUPRA) THAT THE MATTER IS REFERRED TO THE M.A. NO. 74/PN/10 (ARISING OUT OF ITA NO. 692/PN/02) (BLOCK PERIOD 1989-90 TO 1999-2000) DR. RAGHUNATH A SHINDE, , 2 LARGER BENCH. THE PERUSAL OF THIS JUDGMENT ALSO REV EALED THAT THE JUDGMENT IN THE CASE OF CIT VS SURESH N. GUPTA (SUPRA) WAS ALS O CONSIDERED BEFORE REFERRING THE MATTER TO THE LARGER BENCH OF THE SUPREME COURT . THEREFORE, THE DISPUTE ON WHETHER THE AMENDED PROVISIONS OF SECTION 113 OF TH E ACT ARE RETROSPECTIVE OR OTHERWISE IS STILL UNSETTLED AND THEREFORE, THE ISS UE IS STILL DEBATABLE. 4. CONSIDERING THE ABOVE DIFFERENCES OF OPINION ON WHETHER THE PROVISIONS OF SECTION 113 OF THE ACT BEING RETROSPECTIVE IN APPLI CATION OR NOT IS A STILL UNSETTLED MATTER AND THEREFORE THE DEBATE IS STILL PERSISTS. THEREFORE, IN VIEW OF THE ABOVE, WE ARE OF THE OPINION THAT DEBATABLE ISSUES ARE OUT SIDE THE PURVIEW OF SECTION 254(2) OF THE INCOME-TAX ACT. 5. IN THE RESULT, THE MISC. APPLICATION OF THE REVE NUE IS DISMISSED. ORDER PRONOUNCED ON 8 TH SEPTEMBER, 2010 . SD/- SD/- (D. KARUNAKARA RAO) (I.C.SUDHIR) ACCOUNTANT MEMBER JUDICI AL MEMBER PUNE DATED THE 8TH SEPTEMBER , 2010 US COPY OF THE ORDER IS FORWARDED TO : 1. APPLICANT 2. RESPONDENT 3. CIT(A)-I, PUNEK 4. CIT, CENTRAL, PUNE 5. D.R. ITAT A BENCH 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, PUNE BENCHES, PUNE