TMI Blog2017 (11) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 13-11-2017 - SHRI D.T.GARASIA, JM AND SHRI RAJESH KUMAR, AM For The Assessee : Shri Paresh Shaparia For The Revenue : Shri H N Singh ORDER PER RAJESH KUMAR, A. M: This is an appeal filed by the assessee challenging the order dated 9.9.2015 passed by the CIT(A), Mumbai-49 whereby the ld.CIT(A) confirming the non-granting of credit of cash seized of ₹ 17,50,000/- and pay orders of ₹ 58,00,860/- as advance tax against the income tax liability on the income offered in the assessment year 2012-13 made in the statement u/s 132(4) of the Income Tax Act, 1961. 2. Brief facts of the case are that a search and seizure action was conducted u/s 132(1) of the Act on 24.11.2011 on the assessee. The assessee derived income from salary, house property and the income from other sources. The assessee is a partner in Hamsa Trading Co., M/s Kamdar and Co, VVM Enterprises carrying on business of trading in ferrous and non-ferrous metals. During the search proceedings cash of ₹ 17,50,000/- and jewellery worth ₹ 56,36,873/- were found. The cash was seized and a pay orders of ₹ 58,00,860/- dated 19.1.2012 was given to the search te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders, the interest u/s 234B has been charged at a very high figure of ₹ 821297/- 34.1 From the case laws cited by the appellant, it is observed that the courts have held in numerous cases that the assessee was entitled to adjustment of the assets seized u/s 132 of the Act against the liability of advance tax if a request for adjustment was made before the installment became due. In this case the request for adjustment of the seized assets was made by the appellant before the AD on 15.3.2012. However, it is noted that the above said decisions cited by the appellant and reproduced in para No. 34.2 above, can be distinguished since these decisions have not considered the Explanation 2 to section 132B inserted by the Finance Act 2013. The Explanation 2 is reproduced as under:- 132B(1) - The assets seized u/s 132 or requisitioned u/s 132A may be dealt with in the following manner, namely; (i) the amount of any existing liability under this Act, the W T Act, 1957 ( 27 of 1957), the Expenditure Act, 1987 (35 of 1987), the Gift tax Act, 1958 (18 of 1958) and the Interesttax Act, 1974 (45 of 1974) and the amount of the liability determined on completion of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the removal of doubts, it is hereby clarified and it was expressly provided that the amendment would be retrospective w.e.f 01.06.1976. I find that the above comparison is not appropriate since section 9 is a charging section and therefore, the retrospective effect was given by specific mention of the date in the amendment to that section whereas section 1328 is a procedural section and did not require such specific mention of its retrospective application. In view of the above discussion I am of the considered opinion that the term existing liability would not include advance tax payable and therefore the claim of the appellant to application of seized cash and pay orders submitted before the department against the advance tax liability is not correct. Accordingly, no relief can be granted with respect to ground no. 3 and the same is dismissed. Since non-granting of credit of ₹ 75,50,860/- has been upheld, relief u/s 234B on this count claimed in ground no. 4 of the appeal cannot be allowed. However, the AO would allow a consequential relief u/s 2348 while giving effect to this appellate order. Accordingly these grounds are dismissed on above terms. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f) CIT vs Shri Dinesh B. Mody (ITA no. 4718 of 2010) dated 21.09.2011 (Born HC) g) CIT vs. Jafferali Kasamlai Rattonsey (ITNo. 2059 of 20 11) (Born HC) h) CIT vs. Ashok Kumar 334 ITR 355 (Puni. Har. HC) i) M/s Bombay Beeds Centre, Mumbai vs Department of Income ITA No.3458/Mum/2011 dated 2 March, 2012 j) Nitin M Jadia vs. ACIT 107 Taxman 203 (Mum.) k) Sudhakar M. Shetty vs. ACIT 10 DTR 173 (Mumbai)(Trib) Lastly, the ld. AR prayed that in view of the facts and case laws relied upon by the ld. AR that the order of the ld.CIT(A) be set aside and direct the AO to treat the money lying with the department towards the advance tax liability and be directed to delete the interest component levied u/s 234B and 234C of the Act. 5. The ld.DR on the other hand relied on orders of authorities below and submitted that it is not obligatory on the part of the AO to adjust the money seized during the course of survey proceedings towards advance tax liability and therefore he order of ld. CIT(A) should be confirmed. 6. We have heard both the parties, perused the material placed before us including the orders of authorities below and the orders relied upon by the ld.AR. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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