DCIT, Nashik V. Smt. Kamladevi V. Bhutada,

MA 80/PUN/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5329 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 8 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-11-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 19-02-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S SINGH
• Keywords: Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH, PUNE BEFORE SHRI SHAILENDRAKUMAR YADAV AND SHRI D. KARUNAKARA RAO M.A. NO. 80/PN/2010 (ARISING OUT OF ITA NO. 235/PN/2007) (BLOCK PERIOD : 01.04.96 TO 02.05.92) DCIT, CENTRAL CIRCLE 3, NASHIK .... APPELLANT VS. SMT. KAMALADEVI V. BHUTADA 79C, MARKET YARD, LATUR . RESPONDENT APPELLANT BY : SHRI A.S. SINGH RESPONDENT BY : NONE ORDER PER: D KARUNAKARA RAO AM THIS MISCELLANEOUS APPLICATION IS FILED BY THE REV ENUE AND THE SAME ARISES OUT OF THE APPEAL OF THE REVENUE VIDE ITA NO. 235/P N/07. THE REVENUE IS OF THE OPINION THAT THE DECISION OF THE TRIBUNAL IN NOT CO NFIRMING THE LEVY OF SURCHARGE U/S.113 OF THE INCOME-TAX ACT, NEEDS RECTIFICATION IN VIEW OF THE HONBLE SUPREME COURTS DECISION IN THE CASE OF CIT VS SUR ESH N. GUPTA 297 ITR 322 (SC) WHERE THE HONBLE COURT HELD THAT THE AMENDED PROVISIONS OF SECTION 113 OF THE ACT ARE CLARIFICATORY IN APPLICATION AND THEREF ORE, 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 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 M.A. NO. 80/PN/2010 (ARISING OUT OF ITA NO. 235/PN/07) (BLOCK PERIOD 01.04.96 TO 02.05.92) PAGE 2 OF 2 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 PENDENCY OF THE ABOVE ISSUE BEFO RE THE LARGER BENCH, ON WHETHER THE PROVISIONS OF SECTION 113 OF THE ACT BE ING RETROSPECTIVE IN APPLICATION OR NOT, IN OUR OPINION, IT IS A STILL A N UNSETTLED MATTER AND THEREFORE, THE DEBATE IS STILL PERSISTS. THEREFORE, IN VIEW OF THE ABOVE, WE ARE OF THE OPINION THAT DEBATABLE ISSUES ARE OUTSIDE THE PURVIEW OF SE CTION 254(2) OF THE INCOME- TAX ACT. 5. IN THE RESULT, THE MISC. APPLICATION OF THE REVE NUE IS DISMISSED. ORDER PRONOUNCED ON 16 TH NOVEMBER, 2010 . SD/- SD/- (SHAILENDRAKUMAR YADAV) (D.KARUNAKAR A RAO) JUDICIAL MEMBER ACCOUNTANT MEMBE R PUNE DATED THE 16 TH NOVEMBER, 2010 R COPY OF THE ORDER IS FORWARDED TO : 1. DEPARTMENT 2. ASSESSEE 3. CIT(A)-I, NASHIK 4. CIT 5. D.R. ITAT PUNE BENCH, PUNE BY ORDER ASSISTANT REGISTRAR I.T.A.T PUNE