JUDGMENT N. Kumar , J.—The Revenue has preferred this appeal challenging the order passed by the Income Tax Tribunal which held that proviso to section 113 which was inserted by Finance Act, 2002 with effect from 1-6-2002 does not have retrospective application, therefore, the surcharge levied on the assessee is not leviable and therefore, it preferred to delete surcharge. Aggrieved by the said order. Revenue has preferred this appeal. 2. The Apex Court in the case of CIT v. Suresh N. Gupta [2008] 166 Taxman 313 at paragraph Nos. 37 and 38 has held as under:- 37. According to the assessee, prior to 1st June, 2002, the position was ambiguous as it was not clear even to the Department as to which year's FA would be applicable. To clear this doubt precisely, the proviso has been inserted in section 113 by which it is indicated that FA of the year in which the search was initiated would apply. Therefore, in our view, the said proviso was clarificatory in nature. In taxation, the legislation of the type indicated by the proviso has to be read strictly. There is no question of retrospective effect. The proviso only clarifies that out of the four dates, Parliament, has opted for the date, namely, the year in which the search is initiated. which date would be relevant for applicability of a particular FA. Therefore, we have to read the proviso as it stands. 38. There is one more reason for rejecting the above submission. Prior to 1st June, 2002, in several cases, tax was prescribed sometimes in the 1961 Act and sometimes in FA and often in both. This made liability uncertain. In the present case, however, the rate of tax in case of block assessment at 60 per cent was prescribed by Section 113 but the year of FA imposing surcharge was not stipulated. This resulted in the above four ambiguities. Therefore, clarification was needed. The proviso was curative in nature. Hence, the proviso inserted in section 113 merely clarifies that out of the above four dates, the relevant date for applicability of FA would be the year in which the search stood initiated under section 158BC. This resulted in the above four ambiguities. Therefore, clarification was needed. The proviso was curative in nature. Hence, the proviso inserted in section 113 merely clarifies that out of the above four dates, the relevant date for applicability of FA would be the year in which the search stood initiated under section 158BC. Therefore the Apex Court has said that such proviso is curative in nature and it merely clarifies that for a relevant date for applicability of the financial year would be the year in which the search is initiated under section 158BC. Therefore, the order of the Tribunal is contrary to the order passed by the Assessing Officer and it is hereby set aside. 3. However, in the case of Commr. of Income Tax-I, New Delhi Vs. Vatika Township P. Ltd., (2009) 314 ITR 338 SC after referring to the aforesaid Supreme Court judgment, The larger Bench of the Apex Court was at the view that the aforesaid judgment requires to be considered by a larger Bench and accordingly, a direction was issued by the Registry to place the matter before the larger Bench. It was submitted that, now the matter is before the larger Bench. 4. Under these circumstances, as the law stands today surcharge is payable by the assessee. In the event of the larger Bench of the Supreme Court reversing the aforesaid judgment of the Apex Court and holding surcharge is not leviable, the assesseee is absolved of the liability to pay surcharge. Therefore, in our view the proper order to be passed is to set aside the order of the Tribunal and remit the matter to the Assessing Authority with the direction to await the judgment of the Apex Court and consequent to the order passed by the larger Bench to give effect to our order. Hence, the following Order: 1. Appeal is allowed. 2. The impugned order passed by the Tribunal is hereby set aside. 3. The orders passed by the Assessing Authority and the Appellate Commissioner is restored. 4. However, the Assessing Officer shall await the decision of the larger Bench of the Apex Court and depending on the decision to be rendered by the Apex Court to give effect to the order.