TMI Blog2014 (1) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... see either has paid the tax on the returned income or sought adjustment of the amount admittedly lying with the revenue towards the tax payable on the returned income, the Assessee cannot be denied a hearing. The amount of Rs.4,60,000/- belonging to the Assessee which was seized by the Revenue authorities was admittedly available with the appellant was far in excess of the amount of tax payable in terms of the returned income and was even in excess of the demand created under Section 143(1)(a) - The Assessee could not have been denied a hearing merely on the ground of nonpayment of tax due on the returned income - Decided against Revenue. - ITA 62/2001 - - - Dated:- 10-1-2014 - Sanjiv Khanna And Sanjeev Sachdeva,JJ. For the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. 6. Alongwith certain documents and other materials, cash of Rs.4,60,000/- was recovered and seized from the premises of the Assessee. 7. On 28.11.1996, the Assessee filed his return of income declaring an income of Rs.4,97,700/- and as per the return, the due tax payable was shown as Rs.1,61,080/-. The Assessee claimed and had stated that Rs. 50,000/- was paid as advance tax and the amount seized during search at Rs.4,60,000/-, should be treated as paid. Thus, the total amount claimed as paid was Rs.5,10,000/- and accordingly, after adjustment of the due tax as calculated by the Assessee on the returned income of Rs.1,61,080/-, refund of Rs.3,48,920/- was claimed. 8. On 31.03.1997, an intimation under Section 143(1)(a) was iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was found in cash was still lying under the custody of the Revenue and there were no liquid funds with the Assessee for making payment under Section 140A. The Tribunal noticed that there was no dispute that the Assessee had filed return declaring an income of Rs.4,97,700 on which tax due was at Rs.1,73,080/- and the total amount claimed by the Assessee as paid was Rs.5,10,000/- which was more than the tax due and payable by the returned income. 14. The Tribunal held that the AO had failed to discharge his duty by not passing any order in regard to adjustment of Rs.4,60,000/- which was seized by the Department on 14.09.1995. The Tribunal, therefore, held that the amount of Rs.4,60,000/- should be treated against payment of due tax on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that an appeal shall not be admitted unless at the time of the filing of the appeal, the Assessee has paid the tax due on the income returned by him, in case, a return has been filed and in case, no return has been filed, the Assessee has paid an amount equal to the amount of the advance tax which was payable by him. In case, where the Assessee had not filed a return, power is granted to the Commissioner (Appeals) to exempt the Assessee from the requirements to pay the tax for good and sufficient reasons. 19. In support of his case the counsel for the respondent relied upon the judgment of this Court in COMMISSIONER OF INCOME TAX VS. RAMA BODY BUILDERS (DELHI), (2001) 250 ITR 825 (DEL.). In the said case, the Division Bench of this H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uest is stated or mentioned in the grounds of appeal. Section 132B of the Act relates to application of seized assets towards tax liability. It is not stated why and on what ground the application or adjustment was not made. It is not the case of the revenue that that the cash seized was adjusted for another year or was claimed and assessed in the hands of a third person. 21. The rationale behind Section 249(4) appears to be that where an Assessee has filed a return of income, then the tax which is admittedly payable by the Assessee should be paid prior to the hearing of any appeal filed by the Assessee. The rationale seems very logical for the reason that no Assessee can be heard in an appeal where the tax which is admittedly payable by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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