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TMI Blog2017 (7) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... d are that a search was conducted at the residential premises of the assessee on 30.6.2010. During the course of search, cash amounting to Rs. 1,02,73,500/- was found, out of which Rs. 1 crore was seized. The assessee surrendered a sum of Rs. 1,25,00,000/- as income for the assessment year in question under section 132(4) of the Act. The assessee thereafter vide letters dated 23.8.2010 and 4.7.2011 requested that the advance tax payable in respect of assessment year under consideration be adjusted out of the cash seized. The assessee filed his return on 28.7.2011 declaring an income of Rs. 1,51,51,170/- and calculated the tax payable on the same at Rs. 45,31,332/-. The TDS amounting to Rs. 3,87,131/- was adjusted against the tax due and aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the assessee. 4. Aggrieved by the same, the assessee carried the matter before the Ld. CIT (Appeals) where the assessee contended that the issue of adjustment of seized cash against advance tax liability has been settled in favour of the assessee by the Jurisdictional High Court in the case of CIT Vs. Ashok Kumar reported in 334 ITR 355 & CIT Vs. Arun Kapoor, 334 ITR 351, which has been followed by the I.T.A.T., Chandigarh Bench in the case of ACIT, Central Circle-III, Ludhiana Vs. Shri Hans Raj Gandhi in ITA No.739/Chd/2014,dt 18-11-14 and CIT, Central Circle, Patiala Vs. Shri Sanjeev Kumar Goyal in ITA No.936/Chd/2013,dt.27-03-15. The assessee, therefore, submitted that by not giving adjustment of the seized cash against the advan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the jurisdictional High Court orders passed in the case of CIT vs. Ashok Kumar reported in 334 ITR 355 by which the appellant's case is squarely covered. 4. That in the facts and circumstances of the case, the Id. Commissioner of Income Tax (Appeals) gravely erred in adjudicating the appeal without giving any reasons for not following the judgment of jurisdictional Hon'ble Punjab and Haryana High Court and that of jurisdictional Hon'ble Income Tax Appellate Tribunal which are binding on the lower authorities as well as Hon'ble Commissioner of Income Tax (Appeals). 5. That in the facts and circumstances of the case, the Id. Commissioner of Income Tax (Appeals) gravely erred in upholding the action of the Id. Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective by the Jurisdictional High Court in the case of CIT (Central), Ludhiana Vs. Sandeep Jain in Income Tax Appeal No.261 of 2014 (O&M) dated 29.9.2014 and in the case of CIT (Central), Ludhiana Vs. M/s Cosmos Builders & Promoters Ltd. in ITA No.425 of 2014 (O&M) dated 14.7.2015. Thus, the Ld. counsel for the assessee pointed out that clearly the assessee was entitled to adjustment of the cash seized against its advance tax liability and provisions of Explanation-2 to section 132B could not be attracted in the present case, to treat the advance tax liability as not being an existing liability, since this Explanation was applicable only w.e.f. 1.6.2013, while in the present case the search had been conducted and cash seized on 30.6.2010. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ok Kumar and CIT Vs. Arun Kapoor (supra) wherein it has been held that the assessee is entitled to adjustment of seized amount towards advance liability from the date of making the application in that regard. The relevant portion of the order of the Punjab & Haryana High Court in the case of CIT Vs. Ashok Kumar (supra) at para 5 is reproduced hereunder : "5. In CIT vs. Arun Kapoor, IT Appeal No. 149 of 2003 decided on 27th July, 2010, this Court had occasion to consider similar issue where it has been held that the assessee is entitled to adjustment of seized amount towards advance tax liability from the date of making the application in that regard. In the present case, the assessee had made request for adjustment of the advance tax of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra), the High Court held as follows : "We have heard counsel for the appellant, perused the impugned orders and considered argument advanced by counsel for the revenue. The Tribunal has answered the question of chargeability of interest, against the revenue by relying upon a judgment of this Court in Income Tax Appeal No.36 of 2004 (Commissioner of Income Tax v. Ashok Kumar) (supra). The argument by counsel for the revenue, based upon explanation (2) to Section 132B of the Act disregards the fact that the explanation came into force on 01.06.2013, whereas the present case relates to assessment year 2008-09. This apart the explanation is not retrospective in operation and is not referred to as a ground of appeal much less has it been f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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