IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1065 OF 2004 The Commissioner of Income-tax....Appellant Vs. M/s.Emmes Metals Ltd. ...Respondent Mr. P.S. Sahadevan, for the Appellants. Ms. A. Vissanji with Mr. S.S. Mehta for the respondent. CORAM CORAM CORAM : F.I. REBELLO : F.I. REBELLO : F.I. REBELLO & R.S. R.S. R.S. MOHITE, JJ. MOHITE, JJ. MOHITE, JJ. DATED DATED DATED : 7TH JANUARY,2008 : 7TH JANUARY,2008 : 7TH JANUARY,2008 P.C. P.C. P.C. . The Respondents have raised two contentions. It is firstly submitted that prima facie Section 113 which provides for levy of surcharge was with effect from 1st June, 2002. It is pointed out that various High Courts have taken the view that the amendment is prospective. The view taken is where the search has taken place before 1st June, 2002 then proviso would not apply. Secondly, it is pointed out that the issue is debatable and considering that also surcharge could not have been levied. 2. In view of the fact that the issue is debatable we do not propose to answer the first issue. For the reason that the issue is debatable the question of law as framed would not arise and consequently the Appeal is dismissed. (R.S.MOHITE, (R.S.MOHITE, (R.S.MOHITE, J.) J.) J.) (F.I. (F.I. (F.I. REBELLO, J) REBELLO, J) REBELLO, J)