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2007 (8) TMI 269 - MADHYA PRADESH HIGH COURTWhether the Tribunal was justified in rejecting the addition made by the Assessing Officer on account of variation in stock found in course of search and seizure operation and further the opinion that no surcharge was leviable in respect of search conducted during financial year 2001-02 even when the levy of surcharge has been provided by Part I of the First Schedule to the Finance Act, 2000 (10 of 2000) (first proviso to section 2(3) of the Act 10 of 2000)? Held that:- Conclusion of the Tribunal that the addition made by the Assessing Officer on account of variation of stock found in the course of search was based on the assessment of facts by the Tribunal and no substantial question of law as such arose from the order of the Tribunal for decision in the appeal. Regarding surcharge under the proviso to section 113 of the Income-tax Act, 1961, the Tribunal has held that the proviso to section 113 under which the surcharge is levied was inserted by the Finance Act, 2002, with effect from June 1, 2002, and since the search took place on November 30, 2001, i.e., before introduction of the proviso to section 113 of the Income-tax Act, 1961, the Commissioner of Income-tax (Appeals) had rightly deducted the surcharge levied by the Assessing Officer. It is not in dispute that the search took place on November 30, 2001, and that the Finance Act, 2002, introduced the proviso to section 113 with effect from June 1, 2002, and, therefore, no surcharge was leviable under the proviso. Thus we hold that the Tribunal is justified in rejecting the additions made by the Assessing Officer on account of variation in stock and in forming an opinion that no surcharge is leviable.
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