Western India Ceramics Pvt. Ltd.,, Dist.Baroda. v. The ACIT., Circle-4,, Dist.Baroda.

ITSSA 100/AHD/2004 | misc
Pronouncement Date: 28-04-2010 | Result: Partly Allowed

Appeal Details

RSA Number 10020516 RSA 2004
Assessee PAN AAACW1838K
Bench Ahmedabad
Appeal Number ITSSA 100/AHD/2004
Duration Of Justice 6 year(s) 22 day(s)
Appellant Western India Ceramics Pvt. Ltd.,, Dist.Baroda.
Respondent The ACIT., Circle-4,, Dist.Baroda.
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 28-04-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 28-04-2010
Date Of Final Hearing 28-04-2010
Next Hearing Date 28-04-2010
Assessment Year misc
Appeal Filed On 05-04-2004
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI N.S. SAINI ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH JUDICIAL MEMBER DATE OF HEARING: 28.04.10 DRAFTED ON:28.04.10 IT(SS)A NO.100/AHD/2004 BLOCK PERIOD: A.Y.1987-88 TO 26/6/1996 WESTERN INDIA CERAMICS PVT. LTD. BARODA-PADRA HIGHWAY ROAD PADRA DIST. BARODA. VS. THE ASST. COMMISSIONER OF INCOME TAX CIRCLE-4 BARODA. PAN/GIR NO. :AAACW 1838 K (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI M.K. PATEL A.R. RESPONDENT BY: SHRI C.K. MISHRA D.R. O R D E R PER N.S.SAINI ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED ASSESSING OFFICER DATED 30-01-2004 BY TAKIN G THE FOLLOWING GROUNDS OF APPEAL. 1. THE LD. A.O. HAS ERRED IN LAW AND IN FACTS IN MA KING AN ADDITION OF RS.17 05 942/- BEING THE AMOUNT OF DEPO SIT/LOANS ACCEPTED AND DUTY RECORDED IN THE BOOKS OF ACCOUNTS IN THE B LOCK ASSESSMENT PROCEEDINGS OF THE APPELLANT COMPANY FOR THE PERIOD A.Y. 87-88 TO 26.06.96. THESE DEPOSITS ARE HELD TO BE UNEXPLAINE D BY INVOKING TO THE PROVISIONS OF SECTION 68 FOR MAKING THE ADDITIO N. THE ADDITION BEING ERRONEOUS IN LAW AND BEING IN DISREGARD OF TH E AVAILABLE FACTS DESERVES TO BE DELETED. 2. THE LD. A.O. HAS ERRED IN LAW AND IN FACTS IN MA KING THE ABOVE ADDITION BY DISREGARDING THE FACT THAT THESE DEPOSI TS WERE VERIFIED AND ACCEPTED TO BE GENUINE AT THE TIME OF ASSESSMENT PR OCEEDINGS FOR THE A.Y. 93-94 AND ALL THE EVIDENCES SUCH AS CONFIRMATI ONS EVIDENCES OF CREDIT WORTHINESS OF THE DEPOSITORS ETC. IS AVAILA BLE ON RECORD AND - 2 - SAME OUGHT TO HAVE CONSIDERED BEFORE MAKING THE ADD ITION IN THE BLOCK ASSESSMENT PROCEEDINGS. 3. THE LD. A.O. HAS GROSSLY ERRED IN NOT FOLLOWING THE DIRECTIONS OF THE HON'BLE ITAT IN AS MUCH AS THAT THE LD. AO OUGH T TO HAVE CONSIDERED THE CONFIRMATION LETTERS AND OTHER MATER IAL FILED AT THE TIME OF REGULAR ASSESSMENT FOR THE A.Y. 93-94. THE LD. A.O. HAS NOT BROUGHT ANY MATERIAL TO SHOWS THAT THE CONFIRMATION LETTERS AND OTHER EVIDENCES FILED AT THE TIME OF THE REGULAR ASSESSME NT PROCEEDINGS WERE FALLS OR UNRELIABLE. THE ADDITION SO MADE OF RS.17 05 942/- TREATING THE DEPOSITS AS IN GENUINE DESERVES TO BE DELETED. 4. THE LD. A.O. HAS ERRED IN LAW AND IN FACTS IN DI SREGARDING THE FACTUM OF LEVY OF PENALTY UNDER SECTION 271 D ONLY ON HOLDING WHICH WERE HELD TO BE ACCEPTED IN VIOLATION OF LAW. THE LD. A.O. OUGHT TO HAVE HELD THAT THE PENALTY UNDER SECTION 271D IS LE VIED ONLY THE DEPOSIT IS HELD TO BE GENUINE. THE ACTION OF THE L D. A.O. IN HOLDING SUCH DEPOSITS TO BE IN GENUINE BEING ERRONEOUS AND ADDITIONS SO MADE BEING AGAINST THE LAW DESERVES TO BE DELETED. 5. THE LD. A.O. HAS ERRED IN LAW AND IN FACTS IN DI SREGARDING THE FACTS THAT SHRI.V.D. VACHHANI WHOSE STATEMENT WAS R ECORDED IN RESPECT OF THE DEPOSITS HAD ADMITTED THAT THE DEPOS ITS TOTALLING RS.5 69 200/- WERE NON GENUINE AND THEREFORE THE AD DITION IF ANY AND WITHOUT PREJUDICE THAT COULD BE MADE WAS OF RS.5 6 9 200/- ONLY AND NOT RS.17 05 942/-. THUS THE ADDITION BEING EXCES SIVE DESERVES TO BE DELETED. 2. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. THE ISSUE UNDER CONSIDERATION CAME UP BEFORE THE TRIBUNAL IN THE FI RST ROUND OF THE APPEAL AND THE TRIBUNAL VIDE ITS ORDER DATED 30-05-2002 PA SSED IN IT(SS)A NO. 139/AHD/1997 HELD AS UNDER: NOW SO FAR AS THE CASH DEPOSITS AS REFLECTED IN TH E SEIZED DOCUMENTS INCLUDED IN ANNEXURE A-1 OF THE PANCHNAMA ARE CONCE RNED THE AGGREGATE OF SUCH DEPOSITS WORKS OUT TO RS.22 85 90 0/- WHEREAS SHRI V D VACHHANI IN HIS STATEMENT DATED 29.6.96 REPROD UCED HEREINBEFORE HAS STATED THAT THE TOTAL OF THESE D EPOSITS AS PER ANNEXURE-1 COMES TO RS.5 69 200/- WHICH I ADMIT AS NON-GENUINE CASH CREDITS IN OUR ACCOUNTS. THUS THE ADMISSION OF SHRI VD VACHHANI IS IN RESPECT OF RS.5 69 200/- WHEREAS THE TOTAL AS PER ANNEXURE A-1 OF THE PANCHNAMA WORKS OUT RS.22 85 90 0/- THE - 3 - DISCREPANCY IN THE TWO FIGURES APPEARS TO HAVE BEEN IGNORED BY THE LEARNED ASSESSING OFFICER WHILE CONSIDERING THE ISS UE. IT APPEARS TO US THAT THE AO IN HIS ANXIETY TO TREAT THE PEAK DE POSITS DURING THE BLOCK PERIOD AS NON-GENUINE HAS FAILED TO FOCUS HI S ATTENTION ON THE SCRUTINY OF THE SEIZED DOCUMENTS RUNNING INTO 63 PA GES FORMING PART OF ANNEXURE A-1 OF THE PANCHNAMA DATED 29-6-96. PH OTO COPIES OF THESE DOCUMENTS AS ALREADY POINTED OUT ABOVE ARE AVAILABLE IN THE DEPARTMENTAL PAPER BOOK. THESE DOCUMENTS CONSIDERE D IN THE CONJUNCTION WITH THE STATEMENT OF SHRI VD VACHHANI DATED 29.6.96 FURNISH A RELEVANT MATERIAL FOR THE PURPOSE OF CONS IDERING GENUINENESS OF SUCH DEPOSITS IN THE BLOCK ASSESSMENT PROCEEDING S. THE STATEMENT OF SHRI VD VACHHANI ADMITTING THE DEPOSITS TO THE E XTENT OF RS. 5 69 200/- CONSTITUTES RELEVANT EVIDENCE FOR DECIDI NG THE ISSUE OF GENUINENESS OF SUCH LOANS. HOWEVER THE STATEMENT BY ITSELF WOULD NOT CLINCH THE ISSUE AND THE OTHER FACTS AND MATERIAL L IKE THE CREDITORS BEING ASSESSED TO TAX BY THE INCOME-TAX DEPARTMENT AND CONFIRMATION LETTERS FILED DURING THE REGULAR ASSESSMENT PROCEED INGS BY THE ASSESSEE AND ACCEPTED BY THE AO WOULD ALSO HAVE TO BE CONSIDERED AND EVALUATED BY THE LEARNED ASSESSING OFFICER. WE FEEL THAT THE A.O. SHOULD HAVE ALLOWED PROPER OPPORTUNITY TO THE ASSES SEE TO PROVE GENUINENESS OF THE LOANS IN QUESTION AND REBUT AND REFUTE THE EVIDENCE BROUGHT ON RECORD DURING THE SEARCH PROCEEDINGS. I T APPEARS TO US THAT PROPER OPPORTUNITY IN THIS BEHALF HAS NOT BEEN ALLOWED BY THE LEARNED ASSESSING OFFICER. WE WOULD THEREFORE REM IT THE ISSUE CONCERNING THE GENUINENESS OF LOANS AS PER ANNEXURE A-1 OF THE PANCHNAMA TO THE FILE OF THE LEARNED ASSESSING OFF ICER FOR FRESH ADJUDICATION AFTER ALLOWING OPPORTUNITY TO THE ASSE SSEE. WE MAY CLARIFY THAT THE AO WOULD CONFINE HIMSELF TO THE TR ANSACTIONS AS REFLECTED IN THE SEIZED DOCUMENTS CONTAINED IN ANNE XURE A-1 OF THE PANCHNAMA DATED 29-6-96. THE ISSUE IS THEREFORE SE T ASIDE FOR FRESH ADJUDICATION. 3. IN PURSUANCE TO THE ABOVE DIRECTION OF THE TRIBU NAL THE LEARNED ASSESSING OFFICER PASSED ORDER OF BLOCK ASSESSMENT AFRESH IN RESPECT OF THE ABOVE ISSUE ON 30-01-2004 AND HELD AS UNDER: 14. AS MENTIONED EARLIER A SEARCH AND SEIZURE ACTI ON U/S 132 OF THE ACT WAS CARRIED OUT AT ASSESSEES PREMISES. CERTAI N DOCUMENTS SEIZED DURING THIS ACTION WERE INVENTORISED AS ANN.A-1 OF PANCHNAMA DATED 29.6.1996. THESE INCLUDED SEVERAL SIGNED CONFIRMAT ION LETTERS WHICH WERE BLANK OF INCOMPLETE. THE CONCERNED DEPOSITS W ERE ALL RECEIVED IN CASH. NORMALLY NO GENUINE DEPOSITOR WOULD SIGN CONFIRMATION - 4 - LETTER UNLESS ALL PARTICULARS ARE PROPERLY FILLED I N AND ARE VERIFIED BY HIM. THUS THE SEIZED MATERIAL INDICATED THAT THE SAID DEPOSITORS WERE NOT GENUINE. AT THE TIME OF RECORDING OF HIS STATE MENT SHRI. V.D. VACHHANI DIRECTOR WAS CONFRONTED WITH THE SAME VI DE QUESTION NO.2. IN REPLY HE ADMITTED THAT THE DEPOSITS UNDER CONSID ERATION WERE NON- GENUINE. UNDISCLOSED INCOME OF RS.5 69 200/- WAS A DMITTED BY HIM ON THIS COUNT. HOWEVER TOTAL OF THESE DEPOSITS WA S MENTIONED AS RS.22 85 900/- IN THE BLOCK ASSESSMENT ORDER WITH B REAK-UP AS UNDER:- SR.NO. NAME AMOUNT (RS.) 1 KHIMJIBHAI JETHABHAI 15 000 2 NARANDAS MADHAVBHAI 19 500 3 CHUNILAL J. GARDA 18 000 4 RAMNILDAR VALLABHDAS 18 000 5 MANUBHAI GHULABHAI 19 500 6 SURESHKUMAR KANJIBHAI 17 000 7 HASMUKHBHAI GULABHIA 19 500 8 VINUBHAI VITHALBHAI 18 500 9 GRIDHARLAL JAMNADAS 45 800 10 JAGDISH PARSHOTTAM DEVADA 19 000 11 GIRISHBHAI BABUBHAI 19 500 12 JAYANTILAL GANGADAS 15 500 13 RAMESH KANJIBHAI 18 000 14 MRS. HINABEN A. MAKADIA 15 500 15 KRUSHNADAS VALLABHDAS 31 000 16 HITESHKUMAR M. VACHHANI 6 500 17 VALLABHBHAI GARDHANBHAI 10 000 18 HARILAL JAMNADAS 19 000 19 AMRUTLAL JAMNADAS 18 000 20 DINESH SAVJIBHAI 19 000 21 VALJIBHAI ARJUNBHAI 48 900 - 5 - 22 MANSUKHBHAI MENDAPARA 18 500 23 MAGANBHAI RAVJIBHAI 19 500 24 CHHAGANBHAI DEVRAJ 1 710 000 25 SURESHKUMAR M. DHAVBHAI 17 500 26 GIKALDAS KHIMJIBHAI 19 000 27 SURESHBHAI BGECHARBHAI 18 000 28 SMT PUSHPABEN A. MAKADIA 54 000 TOTAL 2 285 900 15. HOWEVER THE SAME IS WORKED OUT BY THE ASSESSEE S REPRESENTATIVE SHRI. MUKUND BAKSHI CA AT RS.16 83 517/-. IT IS S TATED THAT THE ASSESSEE COMPANY HAS CAREFULLY TRIED TO FIND OUT THE DIFFERE NCE AND IT WAS FOUND THAT THE AMOUNT RECEIVED FROM SHRI VALLABH GARDHANBHAI A T SR.NO.17 IS TAKEN AT RS.10 000/- AS AGAINST RS.19 000/-. SIMILARLY THE AMOUNT AGAINST SR.NO.24 FROM SHRI CHHAGAN DEVRAJ IS ACTUALLY RS.10 97 817/- AS AGAINST RS.17 00 100/- TAKEN IN THE STATEMENT. 16. I HAVE GONE THROUGH THE ANNEXURE A-1 OF PANCHNA MA DATED 29.6.1996. IT IS FOUND THAT THE AMOUNT INCLUDED BY THE ASSESSING OFFICER IN THE BLOCK ASSESSMENT ORDER IN THE NAME OF SHRI. VAL LABH GORDHANBHAI AT SR. NO. 17 IS RS.10 000/- AS AGAINST RS.19 000/- SHOWN IN THE COPIES OF ACCOUNT OF THE SAID PARTY AS PER ANNEXURE A-1 OF PANCHNAMA DATED 29.6.1996. SIMILARLY THE AMOUNT INCLUDED IN THE NAME OF SHRI CHHAGAN KESHAVJIBHAI (WRONGLY MENTIONED AS CHHAGANBHAI DEVRAJ) AT SR.NO. 24 IS RS.17 10 000/- AS AGAINST RS.11 21 042/- SHOWN IN THE COPIES OF AC COUNT OF THE SAID PARTY. 17. CONSIDERING THE ABOVE FACTS THE TOTAL OF THESE CREDITORS IS WORKED OUT AT RS.17 05 942/- INSTEAD OF RS.22 85 902/- SHOWN I N BLOCK ASSESSMENT ORDER. REGARDING THESE DEPOSITS/LOANS THE ASSESSEE COMPAN Y WAS AS DIRECTED BY THE HON'BLE ITAT ASKED TO FURNISH THE DETAILS CONF IRMATION FROM ALL THE PARTIES DOCUMENTARY EVIDENCE REGARDING THE SOURCES OF DEPOSITS THEIR CREDITWORTHINESS MODE OF RECEIPTS ETC. TO PROVE TH E GENUINENESS OF THE DEPOSITS/LOANS IN QUESTION. THE ASSESSEE COMPANY H AS SHOWN ITS INABILITY TO FURNISH THE SAME. THE ASSESSEE HAS MERELY STATED T HAT THESE DEPOSITS WERE EARLIER ACCEPTED AS GENUINE BY THE DEPARTMENT AT TH E TIME OF ORIGINAL ASSESSMENT AND IN SOME CASES SUCH AS SHRI. CHHAGAN BHAI PENALTY U/S 271D WAS ALSO LEVIED. HOWEVER THOUGH THESE FACTS ARE R ELEVANT FACTS BY THEMSELVES THEY ARE NOT CONCLUSIVE. AT THE TIME OF THE ORIGINAL REGULAR ASSESSMENT THE DEPARTMENT HAD MADE ASSESSMENT ON T HE BASIS OF MATERIAL - 6 - AVAILABLE AT THAT POINT OF TIME AND PENALTY PROCEED INGS U/S 271D HAD ALSO BEEN INITIATED ON SAME BASIS. SUBSEQUENTLY AT THE TIME AND PENALTY PROCEEDINGS U/S 271D HAD ALSO BEEN INITIATED ON SAM E BASIS. SUBSEQUENTLY AT THE TIME OF SEARCH FRESH INCRIMINATING EVIDENCE IN FORM OF ANNEXURE A-1 AND STATEMENT OF SHRI V.D. VACHHANI WAS GATHERED. THEREFORE FINDING IF ANY REGARDING GENUINENESS OF LOAN AT THE TIME OF O RIGINAL ASSESSMENT REQUIRES RE-EXAMINATION. THE ONUS TO PROVE GENUINE NESS OF DEPOSIT LIES SQUARELY UPON THE ASSESSEE MORE SO IN LIGHT OF EAR LIER DISCUSSED DOCUMENTARY AND ORAL EVIDENCE GATHERED DURING THE S EARCH. HON'BLE ITAT HAS ALSO EVEN AFTER CONSIDERING THE FACTS STATED B Y THE ASSESSEE DIRECTED TO EXAMINE THE MATTER AFTER ACCORDING OPPORTUNITY TO THE ASSESSEE. HOWEVER DESPITE ADEQUATE OPPORTUNITY THE ASSESSEE HAS NOT GIVEN ANY EVIDENCE IN RESPECT OF ANY OF THE SAID DEPOSITOR. IT MAY BE RE CALLED THAT ALL THE DEPOSITS ARE APPEARING IN THE SEIZED FILE ANNEXURE A-1 AND S TATEMENT OF SHRI. V.D. VACHHANI DIRECTOR WAS ALSO RECORDED IN RESPECT OF SAME. IN THE SAID STATEMENT WHICH WAS RECORDED ON OATH WITHOUT ANY F ORCE COERCION OR INDUCEMENT HE HAD CLEARLY ADMITTED THE SAID DEPOSI TS WERE NOT GENUINE. ALTHOUGH THE AMOUNT WAS STATED BY HIM TO BE RS.5 69 200/- HE HAD NOT GIVEN ANY WORKING. IT WAS ALSO NEVER CLAIMED THAT ONLY S OME OF THE DEPOSITS APPEARING IN ANNEXURE A-1 WHOSE AGGREGATE COMES TO RS.17 05 942/- WERE ADMITTED TO BE NON-GENUINE AND AMOUNT OF RS.5 69 20 0/- WAS MENTIONED ONLY DUE TO TOTALLING ERROR. IT MAY ALSO BE MENTIONED H ERE THAT THOUGH THE ASSESSEE HAS FILED BLOCK RETURN OF NIL UNDISCLOSE D INCOME BUT NO REASON HAS BEEN GIVEN FOR DEVIATING FROM THE ADMISSION MAD E DURING THE SEARCH. THE HON'BLE ITAT HAS ALSO OBSERVED THAT THE STATEME NT OF SHRI V.D. VACHHANI CONSTITUTES RELEVANT EVIDENCE THOUGH THE SAME IS REQUIRED TO BE SEEN IN CONJUNCTION OF OTHER EVIDENCE PRODUCED BY T HE ASSESSEE. HOWEVER AS STATED ABOVE IN RESPECT OF THESE DEPOSITS NO E VIDENCE WHATSOEVER HAS BEEN FURNISHED. THEREFORE AN AMOUNT OF RS.17 05 9 42/- IS CONSIDERED AS UNEXPLAINED INCOME IS DETERMINED AT RS.17 05 942/- IN THIS ACCOUNT AS PER PROVISIONS OF SECTION 68 R.W.S. 158BB(2) OF THE I.T . ACT. 4. WE FIND THAT THE LEARNED ASSESSING OFFICER PROCE EDED ON THE ASSUMPTION THAT THE ASSESSEE HAS ADMITTED ENTIRE AM OUNT OF LOAN OF RS.17 05 942/- MENTIONED IN THE SEIZED DOCUMENT A-1 AS UNDISCLOSED INCOME WHEREAS WE FIND THAT THE TRIBUNAL HAS CATE GORICALLY RECORDED IN ITS ORDER DATED 30-05-2002 THAT THE ASSESSEE HAD ADMITT ED ONLY RS.5 69 200/- AS ITS UNDISCLOSED INCOME. THE TRIBUNAL HAD REMITTED THE MATTER BACK TO THE FILE OF THE LEARNED ASSESSING OFFICER TO EXAMINE GE NUINENESS OF THE LOAN OF - 7 - RS.17 05 942/- AFTER CONSIDERING THE SEIZED DOCUMEN T AND THE STATEMENT OF THE ASSESSEE AND THE FACT THAT LENDERS WERE ASSESSE D TO TAX AND CONFIRMATIONS OF THEM WERE FILED ALONGWITH ITS REGULAR RETURN OF INCOME AND THEREAFTER ALLOWING OPPORTUNITY TO THE ASSESSEE TO REBUT THE F INDINGS ARRIVED AT ON THAT BASIS. WE FIND THAT ON THE BASIS OF SEARCH MATERIA L NO MATERIAL WAS BROUGHT ON RECORD BY THE LEARNED ASSESSING OFFICER TO SHOW THAT LOAN OF EXCEPT RS.5 69 200/- I.E. RS.11 36 742/- WAS NOT GENUINE A ND ANY INCRIMINATING MATERIAL TO SHOW THAT WAS FOUND. THUS IN OUR CONS IDERED OPINION THE LEARNED ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKI NG ADDITION OF ENTIRE AMOUNT OF RS.17 05 942/-. FURTHER WE FIND THAT AS SESSEE HAS BROUGHT NO MATERIAL TO SHOW THAT LOAN OF RS.5 69 200/- WHICH W AS ADMITTED DURING THE COURSE OF SEARCH AS UNDISCLOSED INCOME WAS UNDER SO ME MISTAKE AND IN FACT THE SAME WERE GENUINE. BEFORE US BOTH THE PARTIES ADMITTED THAT CONFIRMATION OF ADDITION OF RS.5 69 200/- AND DELET ION OF REMAINING AMOUNT OF RS.11 36 742/- WILL MEET THE ENDS OF JUSTICE. I N THE ABOVE CIRCUMSTANCES WE MODIFY THE ORDER OF THE LEARNED ASSESSING OFFICE R AND CONFIRM THE ADDITION TO THE EXTENT OF RS.5 69 200/- ONLY AND DE LETE THE ADDITION OF THE BALANCE AMOUNT OF RS.11 36 742/-. THESE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE PARTLY ALLOWED. 5. GROUND NO. 6 OF THE ASSESSEES APPEAL READS AS U NDER: 6. THE LD. A.O. HAS ERRED IN LAW AND IN FACTS IN LE VYING THE SURCHARGE ON THE TAX CALCULATED ON THE UNDISCLOSED INCOME FOR THE BLOCK PERIOD AT THE RATE OF 7.50 PERCENTAGE. THE LEVY OF SURCHARGE IS UNFURNISHABLE UNDER SECTION 113 FOR IN RESPECT OF T HE ORDER UNDER CONSIDERATION AND THEREFORE THE LEVY OF SURCHARGE D ESERVES TO BE DELETED. 6. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE SUBMITTED THAT IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COUR T IN THE CASE OF COMMISSIONER OF INCOME TAX VS. SURESH N. GUPTA (200 8) 297 ITR 322 (SC) WHEREIN IT WAS HELD THAT PROVISIONS OF THE RE LEVANT FINANCE ACT HAVE - 8 - GOT TO BE READ INTO THE BLOCK ASSESSMENT SCHEME UND ER CHAPTER XIV-B; EVEN WITHOUT THE PROVISO TO S. 113 INSERTED VIDE FINANC E 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 O N 17TH JAN. 2001 AND ACCORDINGLY SURCHARGE WAS LEVIABLE ON THE TAX; PROV ISO TO S. 113 INSERTED BY THE FINANCE ACT 2002 W.E.F. 1ST JUNE 2002 IS CLA RIFICATORY AND CURATIVE IN NATURE THE GROUND OF APPEAL OF THE ASSESSEE HAS TO BE DISMISSED. THEREFORE WE DISMISS THIS GROUND OF THE APPEAL OF THE ASSESSE E. 7. THUS THE APPEAL OF THE ASSESSEE IS PARTLY ALLOW ED AS ABOVE. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING IN THE PRESENCE OF THE PARTIES ON 28 TH DAY OF APRIL 2010. SD/- SD/- ( MAHAVIR SINGH) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; ON THIS 28 TH DAY OF APRIL 2010 ANKIT COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-V AHMEDABAD. 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 28.04.2010 ---------------- --- 2. DRAFT PLACED BEFORE AUTHORITY 28.04.2010 ------ ------------- 3. DRAFT PROPOSED & PLACED 28.04.2010 --------- ---------- JM - 9 - BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED --------------- ----- -------------- JM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S ---------------- -- ------------------ 6. KEPT FOR PRONOUNCEMENT ON ---------------- --- ----------------- 7. FILE SENT TO THE BENCH CLERK ---------------- -------------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- --- ------------------