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Smt.Anila J.Joshi, Bazargate High School, Gunbow Street, Fort, Mumbai-400001 Vs. Income Tax Officer 12(1)(4), Mumbai.
November, 06th 2013
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            (ss) ./IT(ss)A       No.376/Ahd/2003
          (Block Period - AY : 1991-92 to 2001-02)
 Baldevbhai P.Patel       / The Asst.CIT
 A-9, Galaxy View Apt. Vs. Central Circle-1(3)
 Nr.Ankur Road                  Ahmedabad
     . /  . / PAN/GIR No. : ABYPP 8210 E
   ( /Appellant)          ..        (× / Respondent)

               / Appellant by        :               - None -
            ×   /Respondent by :           Shri T.P.Krishnakumar, CIT-DR

              / Date of Hearing       : 28/10/2013
              /Date of Pronouncement : 28/10/2013

                             / O R D E R


      In this case, the Assessee had filed an appeal against the order of
the Ld.Commissioner of Income Tax(Appeals)-I, Ahmedabad (`CIT(A)'
for short) dated 01/07/2003 pertaining to Block Period 1991-92 to 2001-
02 and the appeal of the assessee was disposed of by this Tribunal vide
order dated 31/08/2007.     The assessee has raised following grounds of
      "The Appellant most respectfully submit as under:
      1.     That, the learned CIT(A) erred in law and on facts in upholding
            the addition of Rs.112,362/- towards late return submission for
                                                IT(ss)A No.376 /Ahd/2003
                                              Baldevbhai P.Patel vs. ACIT
                                    Block Period AY ­ 1991-92 to 2001-02

            the A.Y. 2000-01. That on the facts and in the circumstances of
            the case full relief ought to have been granted.

      2.    The ld.CIT(A) was not justified in sustaining the levy of
            surcharge on tax payable u/s.113 of the Income Tax Act. That
            under the provisions of Ch.XIV-B and section 113, levy of
            surcharge is not sustainable in law.

      3.    The appellant requests that leave may, be granted to add, alter
            or amend the grounds of appeal at or any time before the
            hearing of the appeal."

2.    Subsequently, the Revenue filed a miscellaneous application
No.262/Ahd/2009. The said miscellaneous application was allowed by
this Tribunal vide order dated 07/03/2013 by recalling the Tribunal order
dated 31/08/2007.     During the course of hearing of miscellaneous
application on 01/03/2013, none appeared on behalf of the assessee. The
Revenue has placed on record proof of service of notice of hearing.
Under these circumstances, the appeal was taken up for hearing in the
absence of the assessee.

3.    The ld.CIT-DR submitted that this Tribunal had decided ground
No.2, thereby directing the AO to delete the surcharge levied on the
assessee u/s.113 of the Act.    He submitted that this issue has been
decided by the Hon'ble Supreme Court rendered in the case of CIT vs.
Suresh N.Gupta reported at (2009) 297 ITR 322 (SC).

4.    We have heard the CIT-DR, perused the material available on
record and gone through the orders of the authorities below. We find that
this Tribunal (`C' Bench) had decided ground No.2 in favour of assessee
by relying on the decision of Special Bench in the case of Merit
                                                    IT(ss)A No.376 /Ahd/2003
                                                  Baldevbhai P.Patel vs. ACIT
                                        Block Period AY ­ 1991-92 to 2001-02

Enterprises vs. DCIT reported at 101 ITD 01 (Hyd)(SB). It was held by
this Tribunal that "as the search in this case has taken place on
16.11.2000, i.e. prior to the levy of surcharge with effect from 1.6.2002.
We, therefore, after considering the rival submissions in the facts, this
issue is duly covered by the Special Bench decision, respectfully
following the said decision, allow the ground of appeal of the assessee
and direct the AO to delete the surcharge levied on the assessee u/s.113
of the Act". We find that this order of the Tribunal was prior to the
decision of the Hon'ble Supreme Court rendered in the case of CIT vs.
Suresh N.Gupta(supra).          During the course of hearing of the
miscellaneous application, the assessee chose not to appear before this
Tribunal and while allowing the miscellaneous application, this Tribunal
had relied on the decision of Hon'ble Supreme Court rendered in the case
of ACIT vs. Saurashtra Kutch Stock Exchange Ltd. reported at 305 ITR
227 (SC). We find that the Hon'ble Supreme Court in the case of CIT vs.
Suresh N.Gupta(supra) has held as under:-

       "23. For the aforestated reasons, we hold that even without the proviso
       to s. 113 (inserted vide Finance Act 2002 w.e.f. 1st June, 2002), the
       Finance Act 2001 was applicable to block assessment under Chapter
       XIV-B in relation to the search initiated on 17th Jan., 2001 and
       accordingly surcharge was leviable on the tax amounting to Rs. 97,456
       at 17 per cent amounting to Rs. 16,504. We accordingly answer the
       above question in favour of the Revenue and against the assessee.

4.1.   The Hon'ble Apex Court has further held as under:-

       "26. There is one more reason for rejecting the above submission. Prior
       to 1st June, 2002, in several cases, tax was prescribed sometimes in the
       1961 Act and sometimes in the Finance Act and often in both. This
       made liability uncertain. In the present case, however, the rate of tax in
                                                       IT(ss)A No.376 /Ahd/2003
                                                     Baldevbhai P.Patel vs. ACIT
                                           Block Period AY ­ 1991-92 to 2001-02

         case of block assessment at 60 per cent was prescribed by s. 113 but the
         year of the Finance Act imposing surcharge was not stipulated. This
         resulted in the above four ambiguities. Therefore, clarification was
         needed. The proviso was curative in nature. Hence, the proviso inserted
         in s. 113 merely clarifies that out of the above four dates, the relevant
         date for applicability of the Finance Act would be the year in which the
         search stood initiated under s. 158BC."

4.2.     Therefore, respectfully following the aforesaid decision of the
Hon'ble Apex Court, ground No.2 of assessee's appeal is hereby
rejected.      As a result, ground No.1 of assessee's appeal is allowed and
ground No.2 is rejected.
5.       In the result, Assessee's appeal stands partly allowed.
       Order pronounced in Court on the date mentioned hereinabove at caption page

                  Sd/-                                             Sd/-
             (..)                                              (  )
        ( N.S. SAINI )                                     ( KUL BHARAT )
     ACCOUNTANT MEMBER                                   JUDICIAL MEMBER

Ahmedabad;               Dated   29/ 10 /2013
.., .../T.C. NAIR, Sr. PS
      Copy of the Order forwarded to :
1.      / The Appellant
2.     × / The Respondent.
3.        / Concerned CIT
4.      () / The CIT(A)-I, Ahmedabad
5.      ,   ,  / DR, ITAT, Ahmedabad

6.     [  / Guard file.
                                                                    / BY ORDER,

                ×  //True Copy//

                                                   /  (Dy./Asstt.Registrar)
                                             ,  / ITAT, Ahmedabad
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