TaxTMI 
TaxTMI 
2023 (8) TMI 75
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....e appellant craves leave to add or amend the grounds of appeal before the appeal is finally heard or disposed off. 2. During the course of hearing, the ld. AR submitted that the assessee moved an application before the Hon'ble Settlement Commission and thereafter an order u/s 245D(4) was passed by the Hon'ble Settlement Commission on 14.02.2011 for the block assessment period 01/04/1989 to 29/02/2000 and thereafter the AO passed a consequential order dated 05.04.2011 to give effect to the order of the Hon'ble Settlement Commission. It was submitted that while giving effect to the order of the Hon'ble Settlement Commission, the AO applied surcharge on the taxes and which was subsequently paid by the assessee. It was submitted that thereafter an order u/s 154 was passed by the AO dated 18.03.2014 raising further demand on the assessee. 3. It was submitted that in terms of the decision of the Hon'ble Supreme Court in case of Vatika Township (P) Ltd. (2014) 367 ITR 466 which was pronounced on 15.09.2014, surcharge is not chargeable in respect of search conducted before June, 2002 and in the present case, the search was conducted on 29.02.2000. 4. It was submitted....
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....er and not from the date of the original order". It was, accordingly, submitted that the orders so passed by the ld. CIT(A) be set aside and the rectification application so filed by the assessee be allowed. 7. Per contra, the ld. DR has relied on the order of the lower authorities. It was submitted that the cause of action wherein surcharge has been levied by the AO arises pursuant to the order passed by the AO dated 05.04.2011 and given that the assessee has moved the rectification application only on 01.07.2016, the same is clearly barred by limitation. Further reliance was placed on the order and the findings of the lower authorities. 8. We have heard the rival submissions and perused the material available on record. The search in case of the assessee was conducted on 29/02/2000 and the block assessment period is thus 01/04/1989 to 29/02/2000 and it is not in dispute that the surcharge is not leviable in view of the decision of the Hon'ble Supreme Court in case of Vatika Township(supra) wherein it was held that the proviso to section 113 inserted by the Finance Act, 2002 was prospective in nature with effect from 01/06/2002 provided the rectification application has been fil....
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.... in any way and it doesn't necessarily mean the original order and it can be any order including the amended or rectified order and the relevant findings read as under: 6. What falls for consideration in the present case is the interpretation of the expression "from the date of the order sought to be amended" in sub-s. (7) of s. 154 as it stood then. It is obvious that the word 'order' has not been qualified in any way and it does not necessarily mean the original order. It can be any order including the amended or rectified order. A similar expression in r. 38 of the Mysore Sales Tax Act fell for consideration in International Cotton Corpn. vs. CTO (1975) 2 SCR 345. Dealing with the point raised, this Court held as under : "The other attack that the rectification order is beyond the point of time provided in r. 38 of the Mysore Sales Tax Rules is also without substance. What was sought to be rectified was the assessment order rectified as a consequence of this Court's decision in Yaddalam's case. After such rectification the original assessment order was no longer in force and that was not the order sought to be rectified. It is admitted that all the rectificat....
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....ment proceedings start afresh. When once valid proceedings are started under s. 34(l)(b), the ITO had not only the jurisdiction but it was his duty to levy tax on the entire income that had escaped assessment during that year." In the case of CST vs. H.M. Esufali H.M. Abdulali 1973 CTR (SC) 317 : (1973) 32 STC 77 (SC) : (1973) 90 ITR 271 (SC), this Court dealt with reassessment made under s. 10 of the MP Gen. ST Act, 1958. It was held that when reassessment is made, the former assessment is completely reopened and in its place fresh assessment is made. Hegde, 3., speaking for the Court, observed: "What is true of the assessment must also be true of reassessment because reassessment is nothing but a fresh assessment. When reassessment is made under s. 19, the former assessment is completely reopened and in its place fresh assessment is made. While reassessing a dealer, the assessing authority does not merely assess him on the escaped turnover, but it assesses him on his total estimated turnover. While making reassessment under s. 19, if the assessing authority has no power to make best judgment assessment, all that the assessee need do to escape reassessment is to refuse to file....
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....ned and in its place fresh assessment is made. While reassessing a dealer, the assessing authority does not merely assess him on the escaped turnover but it assesses him on his total estimated turnover. While making reassessment under s. 19, if the assessing authority has no power to make best judgment assessment, all that the assessee need do to escape reassessment is to refuse to file a return or refuse to produce his account books. If the contention taken on behalf of the assessee is correct, the assessee can escape his liability to be reassessed by adopting an obstructive attitude. It is difficult to conceive that such could be the position in law." The Court while dealing with the provisions of the MP Gen. ST Act, 1958 quoted s. 19 and r. 33(1) and (2) which read as under: "19. Assessment of turnover escaping assessment.- (1) Whereas an assessment has been made under the Act repealed by s. 52 and if for any reasons any sale or purchase of goods chargeable to tax under this Act or any Act repealed by s. 52 during any period has been under assessed or has escaped assessment or assessed at a lower rate or any deduction has been wrongly made therefrom, the Commissioner may, ....
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.... be, be in Form XVI specifying the default, escapement or concealment, as the case may be, and calling upon- him to show cause by such date, ordinarily not less than 30 days from the date of service of the notice as may be fixed in that behalf, why he should not be assessed or reassessed to tax and/or penalty should not be imposed upon him and directing him to produce on the sale date his books or account and other documents which the assessing authority may require and any evidence which he may wish to produce in support of his objection: Provided that no such notice shall be necessary where the dealer, having appeared before the assessing authority, waives such notice. (2) On the date fixed in the notice issued under sub-r. (1) or in case the notice is waived on such date which may be fixed in this behalf the assessing authority shall after considering the objections raised by the dealer and examining such evidence as may be produced by him and after taking such other evidence as may be available, assess or reassess the dealer to tax and/or impose a penalty or pass any other suitable order". 7. In view of these authorities taking the view that the word ' any' in the....