TMI Blog2017 (5) TMI 1423X X X X Extracts X X X X X X X X Extracts X X X X ..... Provision of Explanation 2 to Section 132 (B) (4) which excludes advance tax from the ambit of existing liability is applicable from 1st June 2013 and not applicable to the assessment years involved in this appeal. Thus we find that assessee was entitled to adjustment of cash seized and offered for taxation towards its liability for taxes including advance tax. Hence in our considered opinion the authorities below have erred in charging interest u/s. 234 B and 234 C on the facts of the circumstances of the case. - Decided in favour of assessee. - ITA nos.7378 to 7383/Mum./2014 - - - Dated:- 30-5-2017 - SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER, AND SHRI PAWAN SINGH, JUDICIAL MEMBER For The Assessee : Shri. Neomi Lakhpatia For The Revenue : Shri. Kailash Kanojiya ORDER PER BENCH: These are appeals by the assessee are directed against separate orders of Ld. CIT-A. Since the issues are common and the appeals were heard together, these are being disposed off by a common order. N.Venkatanathan 2. The common grounds raised relate to non grant of credit for cash seized during search despite request by the assessee and consequential charge of Interest u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said seized cash has also N.Venkatanathan been granted in the case of SIES by the Department and no addition thereof have been made in case of the appellant. The year wise break up of income offered to tax of ₹ 2.28 crores is as under: Assessment Year Offer of Income Tax Liability 2010-11 1,70,00,000 56,36,360 2009-10 25,00,000 9,75,000 2008-09 20,00,000 8,57,000 2007-08 13,00,000 6,35,000 2,28,00,000 81,03,360 The appellant based on the offer made of the case seized, had requested for adjustment of seized cash against his tax liability arising on account of the offer of income for the above years vide letter dated 29.07.2010 to ADIT (Inv) Unit IX(2), Mumbai. Subsequently, on 18.11.2011, while filing the Returns in response to notice u/s. 153A, the appellant had also requested for adjustment of seized cash against his tax liability arising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73,11,048 2011-12 14,904 14,904 Total 1,13,38,628 1,13,38,628 5. Before the Ld. CIT-A assessee submitted that the cash seized u/s. 132 can be adjusted against the amount of any existing tax liability. The self assessment tax is clearly an existing liability when offer of income is already made. The appellant relied upon several case laws as follows:- N.Venkatanathan Sr. No Case Laws 1 M/s Bombay Beeds Centre, Mumbai vs Department of Income tax on 2 March, 2012 ITA No. 3458/Mum/2011 2 CIT vs Garg Rice and genral Mills, Kharar ITA No. 81 of 2005 (P H HC) 3 Nitin M. Jadia vs. ACIT 107 Taxman 203 (Mum.) (Mag.) 4 Ashok Kumar (2011) 334 ITR 355 (Punj. Har.) 5. CIT v. Arun Kapoor [2011] 334 ITR 351 (Punj. Har.) 6 CIT vs K K Marketing [2005] 278 ITF 596 (Delhi) 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessing officer can determine whether the asset seized is accounted or not and also the ownership of such asset. What if another claimant comes up to claim the money or assets later? Money credited towards an assessee's tax liability will not be available to the real and correct owner when the same is determined. In the present case the case seized was claimed to be partly belonging to South India Education Society and part of it was claimed belong to the appellant. The sources of the cash found in the search was explained to be out of capitation fee in cash charged from the students seeking admission to the courses N.Venkatanathan run by colleges under SIES. Therefore, the question of giving credit to the cash seized as tax paid by the appellant before the assessment order is premature. Thirdly, this appeal involves AY 2010-11, and the due dates for advance tax are long over and the amount of cash seized cannot be appropriated to advance tax payable. This proposition is supported by the decision reported in Rajesh Kumar Vinit Kumar v CIT (2006) 283 ITR 395(AII). 6. Against the above order assessee is in appeal before us. We find that the cash seized during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 132 or for requisition under section 132A, as the case may be, was executed; (ii ) if the assets consist solely of money, or partly of money and partly of other assets, the Assessing Officer may apply such money in the discharge of the liabilities referred to in clause (i) and the assessee shall be discharged of such liability to the extent of the money so applied; (iii ) the assets other than money may also be applied for the discharge of any such liability referred to in clause (i) as remains undischarged and for this purpose such assets shall be deemed to be under distraint as if such distraint was effected by the Assessing Officer or, as the case may be, the Tax Recovery Officer under authorisation from the Chief Commissioner or Commissioner under sub-section (5) of section 226 and the Assessing Officer or, as the case may be, the Tax Recovery Officer may recover the amount of such liabilities by the sale of such assets and such sale shall be effected in the manner laid down in the Third Schedule. (2) Nothing contained in sub-section (1) shall preclude the recovery of the amount of liabilities aforesaid by any other mode laid down in this Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Income Tax Vs. Ashok Kumar, (2011) 334 ITR355 wherein it was recorded as under:- In Commissioner of Income Tax (Central), Ludhiana Vs. Arun Kapoor, ITA No. 149 of 2003 decided on 27.07.2010,this Court had occasion to consider similar issue where it has been held that the assessee is entitled to adjustment of seized amount towards advance tax liability from the date of making the application in that regard. In the present case, the assessee had made request for adjustment of the advance tax liability of ₹ 3,14,312/- against the seized amount of ₹ 5,90,000/- on28.08.1989. Since the first instalment of advance tax was payable on 15.09.1989 and the request for adjustment having been made on 28.08.1989 and reminder on 12.09.1989, no interest was exigible under Sections 234-A and 234-B of the Act. The Tribunal has rightly held that the assessee was entitled to adjustment of the said amount and no interest could be charged on N.Venkatanathan that basis. Therefore, no fault could be found with the approach adopted by the Tribunal. Similarly, in ITA No.425 of 2014 (Commissioner of Income Tax(Central), Ludhiana Vs. M/s Cosmos Builders and Promoters Limited) decided ..... X X X X Extracts X X X X X X X X Extracts X X X X
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