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TMI Blog2015 (1) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... e of search, such provision for levy of surcharge was not there on the Statute Book. - Decided in favour of assessee. - TAX APPEAL NO. 1187 of 2007 - - - Dated:- 22-12-2014 - MR. KS JHAVERI AND MR. K.J.THAKER, JJ. FOR THE APPELLANT : MR SUDHIR M MEHTA, ADVOCATE JUDGEMENT Per: K S Jhaveri: 1. Being aggrieved and dissatisfied with the impugned order passed by the Income Tax Appellate Tribunal, Ahmedabad Bench (hereinafter referred to as 'the Tribunal') dated 18.01.2007 in ITA (SS) No. 219/Ahd/2002, the revenue has preferred the present Tax Appeal. 1.1 This appeal was admitted by this Court on 28.02.2008 for consideration of the following substantial question of law: Whether on the facts and in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 2 (3) thereof. However, initially, this surcharge was levied only on the income of companies i.e. corporate entities incorporated under the Indian Companies Act by specified surcharge at the rate of 15% in the Finance Act, 1996, which was reduced to 7.50% in the Finance Act, 1997. In the next two Finance Acts i.e. 1998 and 1999, there was no surcharge levied even in the cases of companies. However, by Finance Act, 2000, surcharge at a flat rate of 10% came to be levied in respect of individuals, HUF, BOI, AOP as well as co-operative societies, partnership firms, local authorities and also the companies. In subsequent years, the rates at which the surcharge is levied on the aforesaid entities are of varying nature. A tabulated form s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiated; or (iv) the year in which block assessment order was passed. The position which prevailed before amending Section 113 of the Act was that some Assessing Officers were not levying any surcharge and others who had a view that surcharge is payable were adopting different dates for the application of a particular Finance Act, which resulted in different rates of surcharge in the assessment orders. In the absence of a specified date, it was not possible to levy surcharge and there could not have been an assessment without a particular rate of surcharge. As stated above, in Suresh N. Gupta itself, the Court has pointed out four different dates which were bothering the assessees as well as the Department. The choice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arliament. Furthermore, an amendment made to a taxing statute can be said to be intended to remove 'hardships' only of the assessee, not of the Department. On the contrary, imposing a retrospective levy on the assessee would have caused undue hardship and for that reason Parliament specifically chose to make the proviso effective from 1.6.2002. The aforesaid discursive of ours also makes it obvious that the conclusion of the Division Bench in Suresh N. Gupta treating the proviso as clarificatory and giving it retrospective effect is not a correct conclusion. Said judgment is accordingly overruled. 5. Mr. Sudhir Mehta, learned advocate on behalf of the revenue is not in a position to dispute the above and is not in a posit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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