1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR INCOME TAX APPEAL No.47 of 2007 (The Commissioner of Income Tax-III, Nagpur ..vs.. Shri Vasudeo Chandulal Sugandh) ------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ------------------------------------------------------------------------------------------------------------------------------------ Shri Anand Parchure, Advocate for the appellant. CORAM:- J.P. DEVADHAR AND A.B. CHAUDHARI, JJ. DATED :- 21 st OCTOBER, 2010 1. This appeal was admitted on the following questions of law: “i) Whether on the facts and in the circumstances of the case, the ITAT has erred in deciding the appeal directly on merits without considering the maintainability of application u/s 154 ? ii) Whether on facts and in the circumstances of the case, the ITAT is correct in holding that AO was not justified in deleting the surcharge u/s 154 when levy of such surcharge has also been confirmed by the CIT(A) vide his order dated 26-2-2002 ? iii) Whether on the facts and in the circumstances of the case, the ITAT was justified in condoning the delay of 1333 days in filing the appeal ? iv) Whether on the facts and in the circumstances of the case, the ITAT was justified in condoning the delay of 1333 days by heavily relying on the Affidavit filed by the assessee and by ignoring the submissions of the department especially when the facts on the record clearly revealed that the grounds stated for condonation of delay in the Assessee's affidavit were totally contrary to the facts available on record ? 2 v) Whether on the facts and in the circumstances of the case, the ITAT was justified in deciding that the issue of rectification becomes infructuous and accordingly in dismissing Revenue's appeal before it ? vi) Whether on the facts and in the circumstances of the case, the ITAT was correct in observing that it is the case of assessee that the Ld. CIT(A) erred in not deleting interest charged u/s 158 BFA (1) on account of deduction of cash seized which was lying with the department when such issue was not raised by assessee before the CIT(A), and hence whether the order of Hon'ble ITAT based on such observation is perverse ? vii) Whether on the facts and in the circumstances of the case, the ITAT was justified in observing that issue regarding interest u/s 158 BFA(1) is covered in favour of the assessee by Hon'ble ATAT's decision dated 16-6-2006 in the case of Narayandas Chandak and others in ITA No.49 & 50/Nag/2005 when there was no such issue or decision in that order, and hence whether the order of Hon'ble ITAT is perverse ? viii) Whether on the facts and in the circumstances of the case, the ITAT was justified in law, in holding that no surcharge is leviable ignoring the proviso to section 113 inserted by Finance Act, 2002 w.e.f. 01-06-2002 ? ix) Whether on the facts and in the circumstances of the case, the ITAT was justified in law, in directing that cash seized from the possession of the assessee's be deducted as paid by him against tax liability before the due date of filing of the return of Block Period for computing the interest u/s 158BFA(1) when there is no specific provision in Act for such adjustment of tax ? 2. Heard Shri Parchure, learned Counsel for the appellant. None appears for the respondent though served. The basic question involved in this appeal is whether the ITAT was justified in deleting the surcharge levied under Section 113 of the Income-tax Act, 1961. 3 In the light of the judgment of the Hon'ble Apex Court in the case of CIT Vs. Suresh N. Gupta (SC) reported in (2008) 214 CTR 274 (SC), the order of the ITAT is quashed and set aside and the matter is remanded back to the Income Tax Appellate Tribunal, Nagpur Bench, Nagpur to decide the questions raised in the appeal afresh and in accordance with law. All the contentions are kept open. The Income Tax Appeal is disposed of accordingly with no order as to costs. JUDGE JUDGE pma