Ramachandran Nair, J v. The Order Of The Tribunal And Restoring The Assessment On Surcharge

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 ITA.No. 101 of 2009() --------------------- ITA.40/COCH/2004 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/RESPONDENT ---------------------------------------- THE COMMISSIONER OF INCOME TAX (CENTRAL) COCHIN BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S): APPELLANT ------------------------ M/S.BEST BANKERS,MULLAKKAL,ALLEPPEY. THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 11/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR &C.K.ABDUL REHIM, JJ.....................................................................I.T. Appeal No.101 of 2009 ....................................................................Dated this the 11th day of June, 2009. JUDGMENT Ramachandran Nair, J. The question raised in the appeal filed by the Revenue is whetherthe Tribunal was justified in cancelling the demand of surcharge leviedalong with tax in the case of block assessment completed under Section158BC of the Income Tax Act. The Tribunal following certaindecisions of other Tribunals and High Courts held that surcharge is notpayable in respect of tax determined in block assessment. However,Standing Counsel brought to our notice the later decision of theSupreme Court in COMMISSIONER OF INCOME TAX V. SURESHN. GUPTA reported in 2008(297) ITR 322. Since the only issuedecided by the Tribunal stands squarely covered against the assesseeby later judgment of the Supreme Court, we do not think any purposewill be served by issuing notice and hearing the assessee beforejudgment is pronounced. We, therefore, allow the appeal at theadmission stage without issuing notice to the respondent by reversing the order of the Tribunal and restoring the assessment on surcharge confirmed in first appeal. Since assessment is remanded, theAssessing Officer will reompute liability towards surcharge as well inremand proceedings. The appellant will remit batta for the Registry toforward a copy of the appeal along with a copy of the judgment toassessee, which we direct the Registry to do. C.N.RAMACHANDRAN NAIRJudge pms C.K.ABDUL REHIM Judge