Commissioner Of Income-Tax (Central)Ludhiana v. Dr.o.p. Miglani,Miglani Nursing Home,Kunjpura Road, Karnal

In the High Court of Punjab and Haryanaat Chandigarh CM No. 18192-CII of 2007 andITA No. 379 of 2007Date of Decision:02.09.2008 Commissioner of Income-tax (Central)Ludhiana ...... Appellant Versus Dr.O.P. Miglani,Miglani Nursing Home,Kunjpura Road, Karnal ...... Respondent Coram:Hon'ble Mr. Justice Adarsh Kumar GoelHon'ble Mr. Justice Ajay Tewari 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present:Mr.Krishan Mehta, Advocate for the appellant. Mr.Deepak Sharma, Advocatefor the respondent. **** Ajay Tewari, J. C.M. No. 18192-CII of 2007 For the reasons mentioned in the application, delay of 12 days in refiling the appeal is condoned. C.M. stands disposed of. ITA N. 379 of 2007 This appeal has been filed under Section 260-A of the Income Tax Act (hereinafter referred to as 'the Act') by the revenue against the order ITA No. 379 of 2007 dated 29.09.2006 passed by the Income Tax Appellate Tribunal, DelhiBench 'F', New Delhi (hereinafter referred to as 'the Tribunal') in IT(SS)A.No. 349/Del/02 for the Block Assessment Period 01.04.90 to 17.08.2000proposing following substantial questions of law:- (i)Whether on the facts and circumstances of the case, theTribunal was correct in law in confirming the order of theLd. CIT (A) in partially deleting interest levied u/s 158BFA(1) of the I.T. Act in respect of taxes paid up to the deemeddue date of filing the Block Return?Tribunal was correct in law in confirming the order of theLd. CIT (A) in partially deleting interest levied u/s 158BFA(1) of the I.T. Act in respect of taxes paid up to the deemeddue date of filing the Block Return? (ii)Whether on the facts and circumstances of the case, theTribunal was correct in law in deleting the surcharge leviedunder proviso to section 113 on the ground that search hadtaken place in the case of the assessee prior to the insertionof the proviso w.e.f. 01.06.2002?”Tribunal was correct in law in deleting the surcharge leviedunder proviso to section 113 on the ground that search hadtaken place in the case of the assessee prior to the insertionof the proviso w.e.f. 01.06.2002?” Taking the second question first, we may notice that this Court in CWP No. 2046 of 2005, Lalit Hosiery and others v. Union of Indiaand others decided on 18.10.2006 held as follows:- “Having regard to the fact that in the Finance Act 2000, aspecific provision has been incorporated, merely becauseaddition in the Income Tax Act has been incorporated onlyw.e.f. 1.6.2002, did not affect liability of the assessee to paysurcharge. It is not possible to accept that a provision in aFinance Act could not be given effect to unless the same wasincorporated in the main Income Tax Act.” In this view of the matter the second question is answered infavour of the revenue. As regards the first question, it is seen that a search wasconducted on the premises of the assessee-respondent on 17.8.2000.Pursuant to this, notice under Section 158 (BC) of the Act was served on the ITA No. 379 of 2007 assessee on 29.8.2000 whereby he was called upon to file the return ofincome within 30 days as per which the said return could be filed on orbefore 28.9.2000. By letters dated 1.9.2000, 10.9.2000, 22.9.2000,6.10.2000 and 13.10.2000 the assessee requested for copies of the seizeddocuments, without the perusal of which return could not be filed, and alsosought extension of time for filing a block return up to 13.10.2000. Alongwith the application dated 13.10.2000 the assessee enclosed challansevidencing payment of Rs. 40 lacs. There was no communication from theAssessing Officer as to whether extension of time sought for was grantedor refused and, ultimately the return was filed on 13.12.2000. ITA No. 379 of 2007 assessee on 29.8.2000 whereby he was called upon to file the return ofincome within 30 days as per which the said return could be filed on orbefore 28.9.2000. By letters dated 1.9.2000, 10.9.2000, 22.9.2000,6.10.2000 and 13.10.2000 the assessee requested for copies of the seizeddocuments, without the perusal of which return could not be filed, and alsosought extension of time for filing a block return up to 13.10.2000. Alongwith the application dated 13.10.2000 the assessee enclosed challansevidencing payment of Rs. 40 lacs. There was no communication from theAssessing Officer as to whether extension of time sought for was grantedor refused and, ultimately the return was filed on 13.12.2000. The entire assessment is not relevant for the purpose of thisorder since the only question which survives is with regard to the demand ofinterest for Rs. 5, 70, 366/- on account of alleged delay in filing the return.In appeal the Appellate Authority set aside the demand for interest up to13.10.2000 on the ground that the return could be filed up to the said date.In further appeal the Tribunal held that interest was chargeable not on theentire tax on the undisclosed income but on the tax as reduced by the sum ofRs. 46.70 lacs paid by him up to 13.10.2000 on the footing that this amountwas paid by the assessee before the due date for filing the return. In our opinion, this finding of the Tribunal is unexceptionable.In this regard reliance has been placed on the decision of the Bombay HighCourt in the case of Lachman Chaturbhuj Java v. R.G. Nitsure andothers reported as 132 ITR 631 as well as of this Court in the case ofHarmanjit Trust v. CIT reported as 148 ITR 214 and in CIT v. SurinderKumar Parmod Kumar reported as 193 ITR 71. In this view of the matter, question No.1 cannot be held to be ITA No. 379 of 2007 substantial question of law. Thus, this appeal is partly allowed. QuestionNo.2 is answered in favour of the revenue while with regard to questionNo.1, the appeal is dismissed. (AJAY TEWARI)JUDGE ADARSH KUMAR GOEL)JUDGE September 02, 2008sunita