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TMI Blog2015 (11) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... arch and seizure operation was conducted on Thacker Group on 27.7.2006 and it was seen that the four brothers Sri Dinesh N Thacker, Sri Vinod N Thacker, Sri Narendra N Thacker and Sri Mahendra N Thacker were doing separate business. The activities relating to the family unit of Sri Narendra N Thacker are mainly investment related activities which are carried on in the names of his family members. Pursuant to the search, a notice u/s 153A was issued on the assessee on 10.8.2007 and in response to the same , the assessee filed his return of income for the Asst Year 2006-07 on 28.11.2007 declaring taxable income of Rs. 60,12,240/-.During the course of search, cash to the extent of Rs. 20,00,000/- was found from Locker No. 646 with Canara Bank, Vashi Branch, Mumbai, belonging to the assessee and the same was seized by the department. The assessment was completed u/s 153A of the Act on 1.7.2008 determining taxable income at Rs. 60,12,240/- raising a demand of Rs. 24,02,249/-. Originally the Learned AO gave credit for seized cash of Rs. 20,00,000/- towards self assessment tax which was later rectified u/s 154 of the Act by the Learned AO on 2.3.2010 by revoking the credit for seized cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Act, 1958 (18 of 1958) and the Interest-tax Act, 1974 (45 of 1974), and the amount of the liability determined on completion of the assessment under section 153A and the assessment of the year relevant to the previous year in which search is initiated or requisition is made, or the amount of liability determined on completion of the assessment under Chapter XIV-B for the block period, as the case may be (including any penalty levied or interest payable in connection with such assessment) and in respect of which such person is in default or is 35deemed to be in default, or the amount of liability arising on an application made before the Settlement Commission under sub-section (1) of section 245C, may be recovered out of such assets : Provided that where the person concerned makes an application to the Assessing Officer within thirty days from the end of the month in which the asset was seized, for release of asset and the nature and source of acquisition of any such asset is explained 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1), exceeds the aggregate of the amount required to meet the liabilities referred to in clause (i) of sub-section (1) of this section. (b) Such interest shall run from the date immediately following the expiry of the period of one hundred and twenty days from the date on which the last of the authorisations for search under section 132 or requisition under section 132A was executed to the date of completion of the assessment under section 153A or under Chapter XIV-B. 37[Explanation 1].-In this section,- (i) "block period" shall have the meaning assigned to it in clause (a) of section 158B; (ii) "execution of an authorisation for search or requisition" shall have the same meaning as assigned to it in Explanation 2 to section 158BE. [Explanation 2.- For the removal of doubts, it is hereby declared that the "existing liability" does not include advance tax payable in accordance with the provisions of Part C of Chapter XVII.]" 7. We find that the subsequent action of Learned AO in revoking the credit given for seized cash towards existing tax liability under proceedings u/s 154 of the Act is illegal. The provisions of section 132B of the Act makes it clear that the terms 'exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered in the case of CIT vs Vatika Township P Ltd reported in 367 ITR 466 (SC), wherein their Lordships while deciding the issue of applicability of levy of surcharge u/s 113 of the Act brought in the statute with effect from 1.6.2002 is not to be construed as retrospective in operation, had held as follows:- "We would also like to point out, for the sake of completeness, that where a benefit is conferred by a legislation, the rule against a retrospective construction is different. If a legislation confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally, and where to confer such benefit appears to have been the legislators object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. This exactly is the justification to treat procedural provisions as retrospective. In Government of India v. Indian Tobacco Association, the doctrine of fairness was held to be relevant factor to construe a statute conferring a benefit, in the context of it to be given a retrospective operation. The same doctrine of fairness, to hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of seized cash and that itself makes the issue highly debatable and hence in any case cannot be the subject matter of rectification u/s 154 of the Act. It is well settled that an issue which is highly debatable cannot be rectified u/s 154 of the Act. 11. We find that the various case laws cited by the Learned AR in the paper book filed by him need not be considered as those case laws pertain to the adjustment of seized cash towards advance tax liability. But the impugned issue before us is adjustment of seized cash towards self assessment or regular tax payable and not advance tax. In conclusion, we hold that the action of the Learned AO in adjusting the seized cash towards the tax liability determined on completion of search assessment is in order. With regard to charging of interest u/s 234B and 234 C of the Act for non-payment and short payment of advance tax is concerned, we have already held that the amendment in section 132B of the Act is held to be prospective in operation from 1.6.2013 and accordingly not applicable for Asst Year 2006-07. Hence we hold that no interest u/s 234B and 234 C of the Act shall be charged by the Learned AO from the date of seizure of cash to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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