TMI Blog2015 (3) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... t of ₹ 4,31,36,00/- was already available with the department which was deposited in the P.D. account. The assessee made a number of request from time to time for the adjustment of the cash seized against the liability of the advance tax, but the department neither replied nor adjusted the said amount. No doubt that before the due date, the cash was available with the department. The same could have been adjusted against the advance tax. The return was filed on or before the due date so the interest for default in furnishing the return of income under Section-234A was not desirable. Similarly, the interest for default in payment of advance tax is also not leviable under Section-234B for the reason that assessee had already made a requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... request the A.O. to adjust the cash lying in the P.D. account against the advance tax, but the A.O. charged the interest under Section-234A, 234B 234C of the Act. The said interest was deleted by the first appellate authority by observing that the cash was available with the department before filing the return and the same could have been adjusted against the demand of the advance tax. The Tribunal has confirmed the same by observing that the cash belongs to the assessee was already in the government account so there is no question to charge the interest and to this effect the Tribunal has discussed number of case laws to this effect. Still being not satisfied, the department has filed the present appeal. With this background, heard S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the satisfaction of the Assessing Officer, the amount of any existing liability referred to in this clause may be recovered out of such asset and the remaining portion, if any, of the asset may be released, with the prior approval of the Chief Commissioner or Commissioner, to the person from whose custody the assets were seized. [Explanatio2.- For the removal of doubts, it is hereby declared that the existing liability does not included advance tax payable in accordance with the provisions of Part Cof Chapter XVII.] In view of the above legal provisions, it is apparent that the cash seized in the course of search, can only be appropriated against the amount of any existing liability, which in term of explanation 2 do not include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the government account and, at the same time, charge interest for non payment of advance tax on the due date. It is clear that the assessee's application was never adjudicated by the authorities. No reasons were supplied to the assessee to support his arguments. He relied on the ratio laid down by Hon'ble Bombay High Court in the case of CIT Vs. Shri Jyotindra B. Modi dated 21.09.2011, where it was observed that the liability to pay the advance tax in respect of an amount arises before completion of the assessment. Section-132B(1) never prohibits the utilization of amount seized during the course of search towards the advance tax liability. Lastly, he made a request to uphold the order passed by the Tribunal. We heard both t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the advance tax liability and therefore, no interest could be charged under Section-234A,B,C especially when the department had not responded to the assessee's request for the adjustment of the cash seized against the advance tax liability. Similar view was also expressed in the case of CIT vs. Kesar Kimam Karyalaya reported in 278 ITR 596. In view of above discussion and by considering the totality of the facts and circumstances of the case, we do not find any reason to interfere with the impugned order passed by the Tribunal. The same is hereby sustained alongwith the reasons mentioned hereinabove. No substantial question of law is emerging from the impugned order. In the result, the appeal filed by the department is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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