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TMI Blog2011 (2) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... to the order dt. 10th May, 2005 in the above-mentioned case. A search was conducted on 30th Sept., 2000 in the case of Sri Sudhanshu Khandelwal and the assessment for the block period was completed on 30th Sept., 2002 under section 158BC. The total undisclosed income was assessed at Rs. 4,10,450. The tax demand of Rs. 2,88,136 on total income included surcharge of Rs. 41,866 @ 17 per cent under section 113 of the IT Act. The assessee preferred appeal before the CIT(A), Bareilly that was decided vide order dt. 18th Dec, 2003 in Appeal No. 1064/CC/Bly/2003-04. Vide para 7 of the appeal order, the surcharge levied by the AO, as per provisions of section 113 of the Act was deleted by learned CIT(A). Subsequently, the Department filed appeal be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the application. In ITA No. 164/Luck/2004, the Revenue has raised ground No. 4(a) before the Tribunal which reads as under : "The learned CIT(A) has erred in law and on facts in deleting the surcharge of Rs. 41,866 levied by the AO on amount of tax calculated as per provisions of section 113 of IT Act." 3.1. The Tribunal decided the aforesaid issue observing as under : "23. The last ground in the Departmental appeal is about charging of surcharge at Rs. 41,866 which was made by the AO, but deleted by the learned CIT(A). 24. The learned counsel for the assessee and the learned Departmental Representative agreed that this issue is before the Special Bench of Tribunal and matter may be restored back to the file of the AO to follow the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Departmental Representative submitted that now the issue has been decided by the Hon'ble Supreme Court vide its /Judgment dt. 7th Jan., 2008 in the case of CIT v. Suresh N. Gupta [2008] 297 ITR 322(SC) wherein it has been held that surcharge in addition to income-tax is leviable on undisclosed income and proviso to section 113 is clarificatory in nature. Shri Anadi Verma, learned Departmental Representative submitted that in view of the decision of the Hon'ble Supreme Court in the case of Suresh N. Gupta (supra), the relief on the issue of surcharge has been wrongly restored to the AO directing therein to decide the issue in accordance with the decision of Special Bench of the Tribunal. He, therefore, submitted that the above order a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Supreme Court in the case of Suresh N. Gupta (supra), the Hon'ble High Court of Rajasthan opined that even without anything else, even this judgment does make it clear that at least on the date when the Tribunal passed the impugned order, the question about retrospective application of the amendment, made in section 113 was very much a debatable question. 3.7. In the case of CIT v. Vatika Township (P) Ltd. [2009] 314 ITR 338 (SC), the Hon'ble Supreme Court observed (headnote) as under : "In relation to block assessment in search cases, a proviso was added w.e.f. 1st June, 2002, to section 113 of the IT Act, 1961, to the effect that the tax shall be increased by a surcharge. On a claim by the Department that the proviso was ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act (whether it was clarificatory or not) which question was a moot question of law." In view of the above, we are of the view that the issue is debatable one and therefore, no rectification is required in the order of the Tribunal. 3.10. Even otherwise also no rectification is required to be made in the order of the Tribunal in view of the decision of the Hon'ble Calcutta High Court in the case of Smriti Properties (P) Ltd. v. Settlement Commission. The Hon'ble High Court of Calcutta held (headnote) as under : "Retrospective operation of the Supreme Court pronouncement on the interpretation of law can be made applicable only in the cases which have not been decided finally and the same is pending for adjudication. One cannot take adva ..... X X X X Extracts X X X X X X X X Extracts X X X X
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