COMMISSIONER OF INCOME TAX Vs. KIRTI KUMAR SHAH

JUDGEMENT

(1.) THIS appeal is filed by the revenue against the judgment of the Tribunal dated 6 -5 -2005, accepting the appeal of the assessee, and setting aside the orders of the Assessing Officer, and the Commissioner, Income Tax (Appeals), and thereby deleting the surcharge, as levied under Section 113 of the Income Tax Act, 1961. The appeal was admitted on 4 -4 -2006, by framing a substantial question, reading as under:

(2.) THUS , the question precisely comprehends the aspect, as to whether the levy of surcharge, while computing the tax demand is a debatable issue or not. Learned Assessing Officer has passed a very short order (Annex 4), holding, that on examination of assessment records it is noticed, that surcharge leviable has not been charged, and finding it to be a mistake apparent from record, it was purportedly rectified, and the demand notice was issued. The matter was carried in appeal, which was dismissed by learned Commissioner, vide order dated 5 -2 -2004. It is a different story, that the certified copy of that order, which was required to be filed in this appeal, has not been filed.

(3.) THE learned Tribunal has found, that it is undisputed fact, that the amended provision came into force with effect from 1 -6 -2002 only, and there cannot be two opinions, that non -charging of surcharges cannot be stated to be a mistake apparent on record, and that, any issue which is debatable one, cannot be subject -matter of order under Section 154, and has relied upon the judgment of Hon'ble Supreme Court, in Volkart Bros.' case (supra).