TMI Blog2013 (7) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Shreeji Prints P. Ltd. [2013 (7) TMI 19 - ITAT AHMEDABAD]. Thus on interpretation of applicability of explanation, and amendment made by Finance Bill 2013 the amended Explanation cannot be applied in present case. Therefore allow the appeal of the Assessee and direct the AO to give credit of ₹ 10 lacs as advance tax. Thus the appeal of the Assessee is allowed. - ITA No.2698 (Ahd.) of 2011 - - - Dated:- 21-6-2013 - MUKUL KR. SHRAWAT AND ANIL CHATURVEDI, JJ. For the Appellant : Mehul Shah. For the Respondent : D.K. Singh. ORDER:- PER : Anil Chaturvedi: This appeal is filed by the Assessee against the order of CIT(A)-II, Ahmedabad dated 19.08.2011 for assessment year 2007-08. 2. The facts as culled out from the order of lower authorities are as under. 3. In this case a search and seizure action was conducted on 8.2.2007 wherein documents and loose papers were found and seized and the statement was also recorded u/s 132(4) and the Assessee disclosed unaccounted income of Rs 1,50,00,000/. Thereafter Assessee filed return of income on 24.9.2007 declaring total income of Rs Nil after the adjustment of carry forward depreciation. Assessment was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly in order and the demand raised comprising of the interest under section 234B 234C of the Act as per provisions of section are legally correct and does not required any modification as there is no mistake apparent from records. 7. The assessee has also relied upon the decisions in the case of M/s Kesar Kimam Karyalaya [2005] 278 ITR 596 (Del) stating that the ratio of the decision is squarely applicable in the case of the assessee. Also, reliance is placed on the decision in the case of the Sudhakar M Shetty v. ACIT [2008] 10 DTR (Mumbai)(Trib) 173 stating that in this case the facts are similar and the court has held that the department has to adjust the seized amount towards advance tax, etc. from the date when it was seized. However, this respect, here it is relevant to mention that the Hon'ble MP High Court, in the case of Shri Ramjilal Jaoannath v. ACIT [2000] 241 ITR 758 (MP), has held that the amount seized under section 132 cannot be dealt with unless an order is made by the ITO either under section 132(5) or the money is applied or appropriated in accordance with section 132B. Therefore, the petitioner's submission that the amount could be adjusted towards the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax (Appeals) has erred in confirming the action of the Assessing Officer in rejecting the rectification application u/s 154 and charging interest u/s 234B and 234C by treating amount of Rs. 10 lacs which has been adjusted against the cash seized as self assessment tax instead of advance tax. [2] It is therefore prayed that the above interest charged by Assessing Officer u/s 234B and 234C and confirmed by Commissioner of Income Tax (Appeals) may please be deleted. 9. Before us, the Ld. A.R. submitted that during the course of search at the residence of the director of the company on 8.2.2007 and from locker on 7.3.2007 total cash of Rs 43 lacs was found and seized and in this regard Assessee vide letter dated 12.3.2007 requested that out of the total cash seized, cash of Rs 10 lacs be adjusted as an advance tax against the tax liability of the assessee and the balance Rs.33 lacs be treated towards payment of advance tax in case of family members/group companies. He placed on record the copy of the aforesaid letter. He further submitted that in case of one of the group company, (Shreeji Prints) the amount was directed to be treated as payment of advance by the Hon. Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the return of income filed on 31-5-2006. Hence, it can very well be inferred from the return so filed that the respondent/assessee was required to pay advance tax on such income as mandated u/s.208 of the I. T. Act. Therefore, in view of the fact that there is no ambiguity in the provision so far application/adjustment of the seized money is concerned. Further, the judgments as relied upon by the Ld. D.R would not apply on the facts and circumstances of the present case since this is not a case where application u/s. 132(5) is made. Moreover, Section 132(5) is no more on statute book, even otherwise there is divergence in opinion between the Hon'ble High Court of Madhya Pradesh and Hon'ble Delhi High Court as fairly pointed by the Ld. D.R. The order of the ITAT Delhi Bench in ITA No.ll51/Del/2008 as relied by the Ld. D.R. is on different set of facts therefore, is not applicable on the facts of the present case. The issue whether the seized money should be applied towards advance tax liability of assessee and credit should be given credit there-from the date of seizure of money has been decided in favour of the assessee by the decision of ITAT Rajkot Bench in ITA No. 1172/RJT/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (emphasis supplied) 14. In Taxmann's publication "Interpretation of Statutes" 2nd Edition by Shri D.P. Mittal at page 807 it has been stated as under:- "The effect to be given to an explanatory amendment depends upon several factors, including its language. When the legislature has made the explanation operative prospectively by words expressed therein, its operation shall have to be confined to the future date. The same reasoning governs the case when Parliament limits the retrospectivity of the Explanation with effect from a particular date. In such a situation, giving future retrospectivity to the Explanation would be hijacking the intention of the Legislature into an impermissible area- CIT v. Rajasthan Mercantile Co. Ltd. [1995] 211 ITR 400 (Delhi). Thus, there is no doubt that ordinarily, a statute, and particularly when the same has been made applicable with effect from a particular date, should be construed prospectively and not retrospectively". 15. Thus considering the totality of the aforesaid, interpretation of applicability of explanation, and amendment made by Finance Bill 2013, facts and respectfully following the decision of the co-ordinate Bench, we are of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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