Suryanarayan Gopi Krishna, New Delhi V. ACIT, New Delhi

ITA 1115/DEL/2015

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0680 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 25-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K TEWARI
• Assessee Lawyers: R DUREJA
• Section: 143(3); 132

Judgement Text

ITA NO. 1115/D/15 SURYANARAYAN GOPI KRISHNA PAGE 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER & SHRI P. MAHARISHI, ACCOUNTANT MEMBER ITA NO. 1115/DEL/2015 ( ASSESSMENT YEAR: 2012-13) SURYANARAYAN GOPI KRISHNA 33-B, FIRST FLOOR, DDA FLATS, BER SARAI, NEAR JNU NEW DELHI. PAN NO. AKNPK2809G VS ACIT CENTRAL CIRCLE 17, NEW DELHI. ASSESSEE BY SH. R. DUREJA, ADV. REVENUE BY SHRI K. TEWARI, SR. DR DATE OF HEARING 03.07.2018 DATE OF PRONOUNCEMENT 01.10.2018 ORDER PER PRASHANT MAHARISHI, ACCOUNTANT MEMBER : THIS APPEAL IS FILED BY THE ASSESSEE PASSED THE ORD ER OF LD. CIT(APPEALS)-XXVI, NEW DELHI DATED 30.12.201 4 FOR AY 2012-13. THE ASSESSEE HAS RAISED IN ALL FIVE GROUN DS OF APPEAL, HOWEVER, THE ONLY GRIEVANCE WHICH RESPECT TO THE AD JUSTMENT OF SEIZED CASH OF RS. 1.70 CRORES NOT ADJUSTED BY THE ASSESSING OFFICER AS TAX DEPOSITED ADVANCE TAX AND THEREBY CHARGING INTEREST U/S 234A, B & C OF THE ACT. ITA NO. 1115/D/15 SURYANARAYAN GOPI KRISHNA PAGE 2 2. THE BRIEF FACTS OF THE CASE THAT ASSESSEE IS AN INDIVIDUAL. SEARCH U/S 132 OF THE ACT WAS CARRIED OUT ON 17.01. 2012 AT THE RESIDENTIAL PREMISES OF THE ASSESSEE. DURING THE C OURSE OF SEARCH, RS. 1.75 CRORES CASH WAS FOUND OUT OF WHICH RS. 1.70 CRORES WAS SEIZED. THE ASSESSEE FILED HIS RETURN O N 02.12.2013 FOR RS. 1,65,35,333/-. THE ASSESSMENT U/S 143(3) O F THE ACT WAS MADE ON 26.03.2014 AT RS. 1,78,87,607/-. THE L D. ASSESSING OFFICER WHILE WORKING OUT THE TAX DEMAND HAS NOT CONSIDERED THE PREPAID TAX OF CASH SEIZED OF RS. 1. 70 CRORES. THEREFORE, THE ASSESSEE WAS AGREED AND FILED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE HOLDING THAT CASH SEIZED CAN ONLY BE ADJUSTED AGAIN ST THE EXISTING TAX LIABILITY BUT NOT TOWARDS THE ADVANCE TAX. THEREFORE, ASSESSEE AGGRIEVED IS IN APPEAL BEFORE U S. 3. THE LD. AR SUBMITTED THAT NOW THE ISSUE IS SQUAR ELY COVERED IN FAVOUR OF THE ASSESSEE BY CIRCULAR NO. 2 0/2017 ISSUED BY THE CBDT ON 12.06.2017. THE LD. DR SUPPO RTED THE ORDER OF THE LD. CIT(A) AND ASSESSING OFFICER. 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIO NS AND ALSO PERUSED THE ORDERS OF THE LOWER AUTHORITIES. THE ISSUE IS NOW SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY C IRCULAR NO. 20/2017 WHICH SAYS THAT EXPLANATION II TO SECTION 1 32B INSERTED W.E.F. 01.06.2013 IS PROSPECTIVE IN NATURE . THEREFORE, PRIOR TO 01.06.2013 IT IS APPARENT THAT CASH SEIZED CAN BE ADJUSTED AGAINST ADVANCE TAX LIABILITY OF THE ASSES SEE. SUCH ITA NO. 1115/D/15 SURYANARAYAN GOPI KRISHNA PAGE 3 VIEW IS ALSO TAKEN BY THE COORDINATE BENCH IN HAPPY HOME DEVELOPERS VS. ACIT 87 TAXMANN.COM 10 (PUNE). IN V IEW OF THE CIRCULAR OF CBDT AND THE DECISION OF THE COORDINATE BENCH THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE . ACCORDINGLY, WE DIRECT THE LD. ASSESSING OFFICER TO TREAT RS. 1. 70 CRORES CASH SEIZED AS ADVANCE TAX AND ADJUST INTEREST U/S 234A, B & C CONSIDERING IT AS TAX PAID. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01.10.2018 SD/- SD/- (H.S. SIDHU) (P . MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 01.10.2018 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DRAFT DICTATED ON 28.08.2018 DRAFT PLACED BEFORE AUTHOR 29.08.2018 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS 05.10.2018 KEPT FOR PRONOUNCEMENT ON 01.10.2018 DATE OF UPLOADING ORDER ON THE WEBSITE 08.10.2018 FILE SENT TO THE BENCH CLERK 08.10.2018 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER. ITA NO. 1115/D/15 SURYANARAYAN GOPI KRISHNA PAGE 4