TMI Blog2016 (7) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... t Certificates worth ₹ 5,98,75,340/- and 3031.5gms of jewellery were seized. In response to the notice dated 1.6.2001 issued under section 158BC of the Act to file the Block Return within 16 days, the assesee filed the return on 8.1.2002 admitting total undisclosed income of ₹ 1,41,50,975/-. In the course of the Block Assessment Proceedings, the assessee admitted further undisclosed income of ₹ 3,95,632/-. Based on the materials made available, the assessing authority determined the tax liability as ₹ 1,20,55,160/- which included Surcharage @ 17% amounting to ₹ 15,36,495/- and Interest u/s.158BFA for the period from 22.6.2001 to 08.1.2002 (for 7 months) ₹ 14,80,458/-. Challenging the levy of surcharge and interest, the appellant preferred an appeal before the Commissioner of Income Tax (Appeals ) - II, Coimbatore. 3. The Commissioner of Income Tax (Appeals ) - II, Coimbatore / the first appellate authority after considering the submissions of the parties concerned came to the conclusion that the levy of interest under Section 158BFA of the Income Tax Act is not justified and accordingly, it was held by order dated 26.2.2003 in ITA No.189-C/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29.10.1993 1993-94 1994-95 4,44,677 4,44,677 30.01.1995 1994-95 1995-96 4,98,784 4,98,784 11.01.1996 1995-96 1996-97 5,59,714 5,59,714 28.11.1996 1996-97 1997-98 6,52,631 6,52,631 25.03.1998 1997-98 1998-99 6,38,157 5,13,257 28.02.1999 1998-99 1999-2000 44,06,158 6,25,641 30.12.1999 1999-00 2000-2001 39,33,903 -- -- 2000-01 2001-2002 73,22,477 10,10,922 -- Total 2,00,89,899 59,38,924 7. The Assessing Officer, name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT (SS) A No.68(Mds)/2003 questioning the liability of surcharge before the appellate Tribunal and the same was allowed. 10. On the other hand, the revenue filed appeal in IT (SS) A No.95(Mds)/2003 before the appellate Tribunal questioning the waiver of interest on the following grounds:- (i) The learned Commissioner of Income Tax (Appeals) ought to have appreciated that interest u/s.158BFA(1) is clearly exigible on the facts and circumstances of the case. The block return of income was filed on 8.1.2002 after the expiry of the due date for filing the return of income. (ii) The learned Commissioner of Income Tax (Appeals) ought to have appreciated that as per provisions of Sec.158BFA(1), the charging of interest is mandatory if the return of income is furnished after the expiry of the due date and the assessee is liable for interest @ 1 % for every month or part of the month of the tax on undisclosed income determined. (iii) The learned Commissioner of Income Tax ought to have appreciated that waiver or reduction of interest u/s.158BFA(1) could be considered only if the assessee satisfies the conditions specified in the Board's letter in F.No.286/137/2002-IT(INB-II) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted at the time of search. Therefore, the findings of the Tribunal was erroneous and is liable to be set aside. The appellant also prays for the alternative prayer to frame a new issue to remand the entire issue to the file of the respondent in order to consider the correctness of the circumstances especially the availability of the seized cash for the marginal delay in filing the block return of income so as to further consider the plea for condoning the delay of filing the said block return of income which in turn would lead to the correctness of the levy of consequential interest u/s.158BFA(1) of the Act in the computation of undisclosed income for the block period under consideration. 14. Per contra, the learned standing counsel for the respondent submitted that the provisions of section 132 (5) of the Act were completely overlooked and the appellant was not approaching the concerned authority for the adjustment of the seized cash for the tax leviable within 120 days could be fatal to the plea for waiving the interest under section 158 BFA(1) of the Act. He also relied on the decision in the case of Commissioner of Income Tax vs. J.P.Narayanaswamy reported in [2014] 41 Taxma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nished, the assessee shall be liable to pay simple interest of the tax on the undisclosed income determined under clause (c) of Section 158 BC for every month or part of a month comprised for the period commencing on the date immediately following the expiry of the time specified in the notice. As a result of the search conducted on 10.1.2001, cash amount by forming part of fixed deposit certificates and jewelleries were seized and enquiry was conducted by the department. The assessing officer determined the undisclosed income , after the assessee belatedly filed the tax returns. The delay in filing the return is not disputed in the instant case. 17. With regard to the contention of the revenue in the instant appeal that the appellant has to approach the Board to waive the levy of interest, in the case of New Punjab and Shivaraj v. Patil reported in [2002] 122 Taxman 117 (SC), it has been held as follows:- The Circular dated 23.5.1996 was issued by the Board under section 119(2)(a) which vests power in the Board to pass general or special order for waiver of interest under the provisions specified therein including sections 234A, 234B and 234C. No such power is vested in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules, provides the Commissioner of Income Tax to deposit seized cash into the Personal Deposit Account in any State Bank of India or authorised Bank. Such Personal Deposit Account (PD A/c) does not carry any interest. Thus, the seized cash during the course of search remains the same without earning interest when Commissioner deposits the same in the P.D.Account. Therefore, we cannot accept the contention of learned counsel for the Assessee/Appellant that levy of interest should have been adjusted from and out of the amount as available from the seizure amount. 21. The principles of law have been settled that the fiscal statute should be construed strictly as applicable only to taxing provisions such as surcharge provisions or a provision imposing penalty, any liberal construction of the statute cannot be permissible under law. It is well settled that in the matter of interpretation of tax statues, courts should not be justified in interpreting some other expressions, which the legislation thought to omit. Causes omissus cannot be supplied by Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time ..... X X X X Extracts X X X X X X X X Extracts X X X X
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