TMI Blog2017 (11) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome Tax Appellate Tribunal dated 28.11.2008 passed by the Tribunal in ITA No.18/Agra/2007 . 2. The following questions of law have been framed by the assessee. (i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in confirming the demand of interest u/s 234-A and 234-B of the Income Tax Act ? (ii) Whether, interest of ₹ 16,398/- under Section 234A is liable to be deleted as the amount of ₹ 4,90,899/- allegedly belonging to the appellant stood seized by the department on 31.05.1990 and appropriated vide order dated 23.11.1990 under Section 132(5) of the Act ? (iii) Whether, interest of ₹ 1,31,184/- under Section 234-B is liable to be deleted as the amount of ₹ 4,90,899/- allegedly belonging to the appellant stood seized by the department on 31.05.1990 and appropriated vide order dated 23.11.1990 under Section 132(5) of the Act ? (iv) Whether, the term 'existing liability under the Act' has been correctly interpreted and applied in the facts and circumstance existing in the present case ? 3. We have heard Sri Amit Mahajan, learned counsel for the appellant and Sri Piyush Agarwal, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) of sub-section (1) of section 230A in respect of which such person is in default or is deemed to be in default, and retain in his custody such assets/or part thereof as are in his opinion sufficient to satisfy the aggregate of the amounts referred to in clauses (ii), (iia) and (iii) and forthwith release the remaining portion, if any, of the assets to the person from whose custody they were seized: Provided that if, after taking into account the materials available with him, the Income-tax Officer is of the view that it is not possible to ascertain to which particular previous year or years such income or any part thereof relates, he may calculate the tax on such income or part, as the case may be, as if such income or part were the total income chargeable to tax at the rates in force in the financial year in which the assets were seized and may also determine the interest or penalty, if any, payable or imposable accordingly: Provided Further that where a person has paid or made satisfactory arrangements for payment of all the amounts referred to in clauses (ii), (iia) and (iii) or any part thereof, the Income-tax Officer may, with the previous approval of the Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by means of present appeal is confined to confirmation of demand of interest under Sections 234A and 234B of the Act, therefore, it would be relevant to place the provision of Section 234A and Section 234B of the Act, which are as follow; 234A. Interest for defaults in furnishing return of income.-(1) Where the return of income for any assessment year under sub-section (1) or sub-section (4) of Section 139, or in response to a notice under sub-section (1) of section 142, is furnished after the due date, or is not furnished, the assessee shall be liable to pay simple interest at the rate of one per cent for every month or part of a month comprised in the period commencing on the date immediately following the due date, and,-- (a) where the return is furnished after the due date, ending on the date of furnishing of the return; or (b) where no return has been furnished, ending on the date of completion of the assessment under section 144, on the amount of the tax on the total income as determined under sub-section (1) of section 143, and where a regular assessment is made, on the amount of the tax on the total income determined under regular assessment, as redu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of such reassessment or recomputation exceeds the tax on the total income determined under sub-section (1) of section 143 or on the basis of the earlier assessment aforesaid. Explanation.--[* * *] (4) Where as a result of an order under section 154 or section 155 or section 250 or section 254 or section 260 or section 260 or section 263 or section 264 or an order of the Settlement Commission under sub-section (4) of section 245D, the amount of tax on which interest was payable under sub-section (1) or sub-section (3) of this section has been increased or reduced, as the case may be, the interest shall be increased or reduced accordingly, and-- (i) in a case where the interest is increased, the Assessing Officer shall serve on the assessee a notice of demand in the prescribed form specifying the sum payable, and such notice of demand shall be deemed to be a notice under section 156 and the provisions of this Act shall apply accordingly; (ii) in a case where the interest is reduced, the excess interest paid, if any, shall be refunded. (5) The provisions of this section shall apply in respect of assessments for the assessment year commencing on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (2) Where, before the date of determination of total income under sub-section (1) of section 143 or completion of a regular assessment, tax is paid by the assessee under section 140A or otherwise,-- (i) interest shall be calculated in accordance with the foregoing provisions of this section up to the date on which the tax is so paid, and reduced by the interest, if any, paid under section 140A towards the interest chargeable under this section; (ii) thereafter, interest shall be calculated at the rate aforesaid on the amount by which the tax so paid together with the advance tax paid falls short of the assessed tax. (2A) (a) where an application under sub-section (1) of section 245C for any assessment year has been made, the assessee shall be liable to pay simple interest at the rate of one per cent for every month or part of a month comprised in the period commencing on the 1st day of April of such assessment year and ending on the date of making such application, on the additional amount of income-tax referred to in that sub-section; (b) where as a result of an order of the Settlement Commission under sub-section (4) of section 245D for any assessment y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e refunded; (5) the provisions of this section shall apply in respect of assessments for the assessment year commencing on the 1st day of April, 1989 and subsequent assessment years. 13. Having heard the learned counsel for the parties and after perusal of the orders passed by the authorities below as well as the impugned judgment and order of the Tribunal, we have noticed that while deciding the appeal, the CIT(A) has recorded categorical finding that the appellant-assessee has purchased 5 bank drafts towards amounting of ₹ 4,90,899/- on 31.05.1990. The said drafts were purchased for lifting coal by road from the collieries of CCL, Ranchi. These five drafts were deposited along with an application prepared by the appellant's company by 31st May, 1990. During the course of examination and verification, the assessing authority has asked the appellant to explain the source of investment while purchasing the aforesaid drafts. The appellant has explained that he has authorised by one Mahesh Chandra Bansal of Firozabad for lifting the coal from CCL, Ranchi and accepted that he has no knowledge about any purchase of the said drafts. In his submission, the person autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written several letters. But the onus was on the assessee to prove the investment in aforesaid drafts. Everybody knows that the information from banks after a lapse of such long period will not be available. Such papers are destroyed after three to four years by the bank. 16. After examination of entire material available with the CIT(A), the CIT(A) concluded that the contention of the appellant that he has failed to receive any reply from the bank with regard to purchase of draft is not at all relevant. Admittedly, the drafts were purchased in the name of the appellant by depositing the cash (no source of availability of cash is explained), therefore, evidence regarding purchase of drafts will not throw any new light on the facts. The CIT(A) further mentioned that moreover onus was on the appellant to submit any additional evidence with regard to his explanation, which he failed. The CIT(A) has further mentioned that the five drafts were purchased in the name of the appellant and same were deposited by the appellant with affidavit and application with own signature is itself a sufficient proof that the appellant has invested a sum of ₹ 4,90,899/- from unaccounted source ..... X X X X Extracts X X X X X X X X Extracts X X X X
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