ITA No. 379 of 2007 1 In the High Court of Punjab and Haryana at Chandigarh CM No. 18192-CII of 2007 and ITA No. 379 of 2007 Date 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 Goel Hon'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, Advocate for 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 2 dated 29.09.2006 passed by the Income Tax Appellate Tribunal, Delhi Bench '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 17.08.2000 proposing following substantial questions of law:- (i)Whether on the facts and circumstances of the case, the Tribunal was correct in law in confirming the order of the Ld. CIT (A) in partially deleting interest levied u/s 158BFA (1) of the I.T. Act in respect of taxes paid up to the deemed due date of filing the Block Return? (ii)Whether on the facts and circumstances of the case, the Tribunal was correct in law in deleting the surcharge levied under proviso to section 113 on the ground that search had taken place in the case of the assessee prior to the insertion of 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 India and others decided on 18.10.2006 held as follows:- “Having regard to the fact that in the Finance Act 2000, a specific provision has been incorporated, merely because addition in the Income Tax Act has been incorporated only w.e.f. 1.6.2002, did not affect liability of the assessee to pay surcharge. It is not possible to accept that a provision in a Finance Act could not be given effect to unless the same was incorporated in the main Income Tax Act.” In this view of the matter the second question is answered in favour of the revenue. As regards the first question, it is seen that a search was conducted 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 3 assessee on 29.8.2000 whereby he was called upon to file the return of income within 30 days as per which the said return could be filed on or before 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 seized documents, without the perusal of which return could not be filed, and also sought extension of time for filing a block return up to 13.10.2000. Along with the application dated 13.10.2000 the assessee enclosed challans evidencing payment of Rs. 40 lacs. There was no communication from the Assessing Officer as to whether extension of time sought for was granted or refused and, ultimately the return was filed on 13.12.2000. The entire assessment is not relevant for the purpose of this order since the only question which survives is with regard to the demand of interest 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 to 13.10.2000 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 the entire tax on the undisclosed income but on the tax as reduced by the sum of Rs. 46.70 lacs paid by him up to 13.10.2000 on the footing that this amount was 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 High Court in the case of Lachman Chaturbhuj Java v. R.G. Nitsure and others reported as 132 ITR 631 as well as of this Court in the case of Harmanjit Trust v. CIT reported as 148 ITR 214 and in CIT v. Surinder Kumar 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 4 substantial question of law. Thus, this appeal is partly allowed. Question No.2 is answered in favour of the revenue while with regard to question No.1, the appeal is dismissed. (AJAY TEWARI) JUDGE ADARSH KUMAR GOEL) JUDGE September 02, 2008 sunita