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2015 (10) TMI 936 - ITAT LUCKNOW

2015 (10) TMI 936 - ITAT LUCKNOW - TMI - Rectification of mistake - adjustment of advance tax against the seized amount and the non chargeability of interest u/s 234B and 234C of the Act - maintainability of rectification appeal as was sought after the expiry of four years from the end of the financial year in which the assessment order was passed - Held that:- Undisputedly the application for rectification dated 19.09.2006 was not disposed of by the Assessing Officer by passing any speaking ord .....

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ted that I.T.N.S.-150 was passed on 18.09.2006. But he has not produced any order passed on the application filed u/s 154 of the Act. Therefore, it has become abundantly clear from the record that the Assessing Officer has not disposed of the application dated 19.06.2006 filed u/s 154 of the Act by passing speaking order. Thus, the rejection of succeeding application is not proper on the ground that these rectification applications were filed after four years from the end of the financial year i .....

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for AY 2004-05. We, therefore, do not find any infirmity in the orders of the CIT(A) and accordingly we confirm the same. - Decided against revenue. - ITA No.777/LKW/2014 - Dated:- 4-9-2015 - SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER For The Appellant Shri Amit Nigam, DR For The Respondent Shri Rakesh Garg, Advocate ORDER PER SUNIL KUMAR YADAV, JM. This appeal is preferred by the Revenue against the order of Ld. CIT(A)-II, Kanpur, inter alia on the followin .....

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the Ld. Commissioner of Income Tax (Appeals)-II, Kanpur has erred in law and on facts in not appreciating the fact that the assessee s petition u/s 154 was disposed of vide order dated 18.09.2006 rectifying the interest u/s 234A and granting resultant refund of ₹ 11,60,962/- in consequent to which the assessee moved petition for waiver of interest u/s 234B and 234C before Chief Commissioner of Income Tax, Central Circle, New Delhi on 21.09.2006, this clearly shows that the assessee was ful .....

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nst the existing liability or the amount of liability determined on completion of assessment and that existing liability does not include advance tax payable. 4. That the order of Ld. Commissioner of Income Tax (Appeals)-II, Kanpur dated 15.07.2014 be quashed. 5. That the appellant craves leave to modify any of the grounds of appeal mentioned above and/or to add fresh grounds as and when it is required to do so. 2. The facts in brief relating to impugned issue are that the assessment was framed .....

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t of the Department. This application of the assessee was not disposed of. The AO, however, issued I.T.N.S.-150 in which the adjustment of the advanced tax for AY 2004-05 was not made and the Assessing Officer has charged interest u/s 234A of the Act. The assessee further issued the reminders to the Chief Commissioner vide his letter dated 20.09.2006 with a request that seized money be adjusted against the advance tax and no interest u/s 234B and 234C of the Act be charged. The assessee finally .....

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t order was passed. 3. Aggrieved the assessee has preferred an appeal before the CIT(A) with the submission that the Assessing Officer has not disposed of the application of the assessee seeking rectification u/s 154 of the Act with respect to the adjustment of advance tax against the seized amount and the non chargeability of interest u/s 234B and 234C of the Act. He has also invited/attention of the CIT(A) that in reply to the Chief Commissioner the Assessing Officer has admitted that he has i .....

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ieved the Revenue is in appeal before us, with the submission that the application filed u/s 154 after expiry of four years from the end of the financial year in which the assessment order was passed, is not maintainable, therefore, the AO has rightly rejected the application of the assessee. 5. The Ld. Counsel for the assessee, on the other hand submitted that the assessee moved an application before the AO u/s 154 of the Act seeking rectification therein with respect to adjustment of advance t .....

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sioner for the deletion of the interest charged u/s 234B and 234C of the Act. Therefore, the Assessing Officer cannot take this ground before the Tribunal. The Assessing Officer could not place the order passed by him disposing the application u/s 154 of the Act. Therefore, the application of the assessee dated 11.06.2013 cannot be dismissed on the ground that the rectification application was filed after the expiry of period of four years from the end of financial year in which the assessment o .....

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ioner vide his letter dated 20.09.2006 and on 13.04.2011 with a request of adjustment of the advance tax against the seized amount. In response to these letters, the CIT(A) and CCIT has called report from the Assessing Officer in which the Assessing Officer himself has admitted that I.T.N.S.-150 was passed on 18.09.2006. But he has not produced any order passed on the application filed u/s 154 of the Act. Therefore, it has become abundantly clear from the record that the Assessing Officer has no .....

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spute of adjustment of seized amount against the advanced tax for the AY 2004-05 and in that case the interest u/s 234B and 234C would not be charged. In this regard our attention was invited to the legal position by placing reliance upon the various judicial pronouncements. We have been carried through the judgment of the Delhi Bench of the Tribunal in the case of Satya Prakash Sharma Vs. ACIT in ITA No.1735(Del) of 2008 in which it has been held that on request for adjusting the seized cash ag .....

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