TMI Blog2003 (8) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... contention that the surcharge was not leviable." 2. Facts indicate that an action under s. 132(1) of the Act was carried out on 24th Nov., 1999, and in pursuance of the same, notice under s. 158BC was served on the assessee. The assessee filed the block return showing undisclosed income of Rs. 2,48,734. The undisclosed income so returned was accepted in the assessment and the block assessment was completed at the returned undisclosed income. However, the AO levied surcharge also in addition to tax under s. 113 of the IT Act, besides interest under s. 158BFA(1), against which the assessee filed an appeal before the learned CIT(A). 3. During the course of appellate proceedings before the learned CIT(A), the assessee filed written submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in further appeal and while reiterating the submissions as made before the lower authorities, it was pleaded for deletion of surcharge levied in the block assessment under s. 113 of the Act which only imposes tax at the rate of 60 per cent on undisclosed income for the year under consideration which is the charging provision for the purposes of Chapter XIV-B and so far as s. 4(1) is concerned, same is meant for regular assessment and proviso to said sub-section does not mention about amendment Act. Since charging provisions are to be strictly construed and reliance in this regard was placed on K.M. Sharma vs. ITO (2002) 174 CTR (SC) 210 : (2002) 254 ITR 772 (SC), and if no sanction is there, if cannot be levied CIT vs. Alpino Soluex Ltd. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve from 1st July, 1995, whereas the proviso to s. 113 was inserted by Finance Act, 2002, w.e.f. 1st June, 2002. Therefore, the said amendment neither can be said to be clarificatory in nature nor can retrospective effect be given to the same. It was also submitted that the learned CIT(A) is banking upon the Board s Circular and while finding the arguments of the assessee to be logical, he did not accept the same. Since all the Board s circulars are not binding and there is a proviso inserted w.e.f. 1st June, 2002, therefore, no retrospectivity can be given to the same and as per the said proviso, no doubt, surcharge is leviable but not from retrospective date, that means, for the searches conducted on or after 1st June, 2002, and not before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate applicable for different years. Reliance was placed on the decision reported in (2000) 113 Taxman 74 (Cal). The surcharge is liable in view of already existing provisions, as such, the authorities below are justified in levying/confirming the surcharge. Their action being legally correct, needs further confirmation. The learned Departmental Representative has also filed a portion of the CIT(A) s order in appeal No. 289/201/202 dt. 1st Nov., 2002, in order to highlight the rules of interpretation of statute. it was urged for confirmation of the impugned order. 6. The learned counsel for the assessee, in order to counter the submissions of the learned Departmental Representative has pleaded that so far as the provisions of ss. 112 and 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication. It is a cardinal principle of construction that every statute prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. In the absence of the words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only. On the other hand, in contrast to statutes dealing with substantive rights, statutes dealing with merely matters of procedure are presumed to be retrospective unless such a construction is textually inadmissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which takes away or impairs substantive rights acquired under the existing law, is construed to have a prospective operation unless the language of that statute expressly or by inevitable intendment compels a contrary construction. But this presumption as to the prospective operation of a statute does not apply to an enactment affecting procedure or practice such as the CPC. The reason is that no person has a vested right in any course of procedure. The general principle indeed seems to be that alternations in the procedure are always retrospective, unless there be some good reason against it." 9. Considering the language of the relevant provisions in the light of elucidation and discussion as held above, the insertion of proviso to s. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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