9911796707
TMI Blog2008 (10) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... By a letter dated 15.12.1994, a declaration was made by the appellant in terms of sub-Section (4) of Section 132 of the Act, by reason whereof he opted to pay taxes from out of the seized shares and securities stating that the shares be expeditiously disposed of and the sale proceeds therefrom be appropriated towards taxes. The said letter dated 15.12.1994 reads as under : "Please refer to your letter cited in reference above in the matter of payment of taxes. I had made declaration U/s. 132(4) of the Act and pursuant declaration opted to pay taxes from out of the assets namely shares and securities under seizure, as I have no further funds. I have therefore delivered my consent and requested the Asst. Director of Income Tax (Inv.) Unit-2 (3), to dispose of the shares as expeditiously as possible for appropriating the proceeds towards taxes and advance tax. In the above circumstances I request you sir to arrange for sale of Shares, Securities under seizure to meet the tax liabilities and oblige." Indisputably, the said request of the appellant was not acceded to. However, the fact that such an offer had been made by the appellant is not denied or disputed. It is furthermore not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessments under consideration were passed in the status of HUF. From the details gathered by the Department, it was revealed that the assessee possesses good resources and he is financially sound and it will not cause any hardship in discharging legitimate tax liability which is in the form of interest u/s 220 (2A) and the tax liability that would have arisen out of his inordinate delay in liquidation of taxes." By reason of the impugned judgment, the High Court opined: "The hardship claimed by the petitioner is on account of lack of resources either moveable or immoveable. Even after the conclusion of this Court that the finding of the 1st respondent regarding the property at Begumpet is justified, the fact remains that the petitioner had assets by way of units in the Unit Trust of India by the date of the Settlement Commission determined his liability of tax. The fact that a distress sale conducted by the Unit Trust fetched a lower rate in our view does not make any difference for the consideration of the application of the petitioner for the waiver of interest. The UTI did not follow according to the Division Bench of this Court the requisite procedure in resorting to di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; 1988-89 13,54,284 1990-91 37,29,992 1991-92 33,68,567 1992-93 61,39,448 1993-94 7,21,192 1994-95 65,145 1995-96 3,99,023 Total 1,57,77,651" Demand notices were issued accordingly. Taxes were payable in terms thereof on or before 1.4.2000. All amounts paid by the appellant before the said date were adjusted. The appellant had deposited a total amount of Rs.1,60,66,947/- on or before 8.3.2002. The amount of interest calculated at a sum of Rs.31,41,106/- was levied for non-payment of the dues as on 8.3.2002 for Assessment Years 1990-91, 1991-92, 1992-93 and 1995-96. The amount so determined, however, stood rectified for the four Assessment Years to the extent of Rs.24,36,352/- in stead and place of Rs.31,41,106/- as would appear from the following chart. Assessment Year Tax demand payable Levied Int. U/s. 220 (2) Demand paid/recovered till 8.3.2000 (Rs.) (Rs.) (Rs.) 1988-89 13,54,284 NIL 13,54,284 1990-91 37,29,992 1,91,996 37,27,992 1991-92 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle should also be applied for the purpose of determining as to whether any hardship had been caused or not. A genuine hardship would, inter alia, mean a genuine difficulty. That per se would not lead to a conclusion that a person having large assets would never be in difficulty as he can sell those assets and pay the amount of interest levied. The ingredients of genuine hardship must be determined keeping in view the dictionary meaning thereof and the legal conspectus attending thereto. For the said purpose, another well--known principle, namely, a person cannot take advantage of his own wrong, may also have to be borne in mind. The said principle, it is conceded, has not been applied by the courts below in this case, but we may take note of a few precedents operating in the field to highlight the aforementioned proposition of law. [See Priyanka Overseas Pvt. Ltd. & Anr. v. Union of India & ors. 1991 Suppl. (1) SCC 102, para 39, Union of India & ors. v. Major General Madan Lal Yadav (Retd.) (1996) 4 SCC 127 at 142, paras 28 and 29, Ashok Kapil v. Sana Ullah (dead) & ors. (1996) 6 SCC 342 at 345, para 7, Sushil Kumar v. Rakesh Kumar (2003) 8 SCC 673 at 692, para 65, first s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The same ground, however, was not available to the appellant in respect of the demand draft, as in relation thereto no such request was made. The demand draft was in the name of a Company. It may be true that when any document is seized, a presumption is raised that the same belongs to the person from whose possession or control it was seized as is laid down in sub-Section (4A) of Section 132 of the Act, but such a presumption is a rebuttable one. In the absence of any request made by the Assessee himself, probably at that point of time, the same could not have been encashed. Appellant did not own the same in law. He did not make any request for its enchashment. Whether such a presumption should be raised or not was the subject matter of consideration by the Assessing Officer at the time of making its final assessment as the appellant himself filed an application before the Settlement Commission in terms of Section 245C(1) of the Act. 10. We are, therefore, of the opinion that interests of justice would be subserved if the impugned judgment is set aside and the matter is remitted to the Commissioner of Income Tax for consideration of the matter afresh. 11. The appeal is al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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