TMI Blog2013 (7) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... d u/s. 220(2) – Appeal allowed. - ITA No. 3160-3162/Ahd/2011 - - - Dated:- 28-6-2013 - Shri Pramod Kumar And Shri Kul Bharat,JJ. For the Appellant : None For the Respondent : Shri T. Sankar, SR-DR ORDER Per Kul Bharat, Judicial Member:- These three appeals by the legal heirs of the assessee Shri Dineshchandra J Soni are directed against different orders of Commissioner of Income-tax (Appeals)-V, Baroda ('CIT(A)' for short) of all dated 17-10-2011 for the assessment years (AYs) 1993-94, 1994-95 and 1998-99. The facts and the issues are identical in all these appeal. 2. At the time of hearing none appeared on behalf of assessee, however, written submission pertaining to 1994-95 and 1998-99 are on heard. The grounds raised by assessee in all the appeals are same and therefore, taking the facts of the case for the AY 1993- 94 in ITA No.3160/Ahd/2011 as a lead case for the sake of convenience we take up all the appeals together and dispose of all in the absence of assessee, on the basis of the written submission filed on behalf of assessee. 3. Ground raised by assessee in ITA No. 3160/Ahd/2011 reads as under:- "1. Assessing Officer has erred in not considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal of assessee lies against the rejection of rectification application filed against charge of significant interest us. 220(2) of IT Act, 1961 without considering the facts law. 2. In the case of original assessee, now represented by the Legal Heir, business personal ornaments of gold silver were seized in 1993 protective assessment order was passed u/s. 132(5) of IT Act, 1961 by estimating the total liability towards tax, interest u/s. 234A/B/C penalty u/s 271(1) for AYs 1990-91 to 1994-95. 3. The Assessing Officer took 6 years in determining the final liability of tax interest u/s. 234 A/B/C as final assessment u/s. 143(3) was completed only on 28.02.2000. Thus, the assessment proceedings were not finalized expeditiously that has already caused significant liability towards interest u/s. 234A/B/C till the date of assessment order. Search issuance of restrained order u/s. 132(5) invade the rights of the petition. The said invasion is presumed to be of a temporary duration. However, in the case of the assessee, the presumption of a temporary duration was not met because of six years taken for finalizing assessment proceedings. We like to rely on the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with the IT Act. The hon'ble CIT(A) has failed to appreciate the fact that assessee was handicapped by the authorities in making payments of demand for A.Ys 1993-94, 1994-95 1998-99. Inspite of the severe hardship due to closure of regular business, assessee paid the demand for AYs 1990-91 1991-92 1992-93 from the sources other than the seized material. Inspite of that, the authorities did not release or auction the seized material even for the demand of AYs 1993-94, 1994-95 and 1998-99. This defeats the very purpose of seizing retaining the material as authorities were not interest in adjusting the same against the demand liability. This was the clear situation of restricting the assessee from paying the demand. It cannot be said that assessee did not paid the demand or was in default in payment of demand as assessee was left with no option. 8. If there is a loss of interest to the revenue, then that loss was attributable to the conduct of the income tax authorities not because of the assessee. If the IT authorities are permitted to recover additional interest u/s. 220(2) in such manner, it will not be a good precedent will unnecessarily ratify the apparent unjusti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejection of rectification application filed against charging of significant interest u/s 220(2) of the Act without considering the facts and law. 6.1 We have given our thoughtful consideration to the written submission filed by assessee and the submission made by Ld. DR of the Revenue. The contention of assessee is that seized material was lying with the Department for more than 10 years and was neither released nor auctioned. Therefore, interest u/s. 220(2) of the Act is unreasonable and unjustified. The Revenue ought to have auctioned the seized material and recovered the tax out of sale consideration. Another submission is that the Revenue could also adjust interest against the interest accrued on the seized material. In our considered view these contentions of the assessee are not tenable in law as the scope of Section 154 of the Act is very limited, the assessee is required to point out any mistake apparent from the record but in this case, the assessee failed to point out any mistake apparent from the order passed u/s. 220(2) of the Act. Moreover, the assessee has not drawn our attention to any such provisions of the Act, that entitles the assessee for interest on the value ..... X X X X Extracts X X X X X X X X Extracts X X X X
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