Asstt.Commissioner of Income Tax,Circle-1(4), Nagpur V. Shri Nava Kumar D Bhoot, Amaravati

ITA 115/NAG/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1818 (ITAT-NAGPUR)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 04-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 153A; 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR E-BENCH, NAGPUR (THROUGH VIDEO CONFERENCE AT MUMBAI) . . , . / , . . BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER /AND SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO. 115/NAG/2012 / ASSESSMENT YEAR 2005-06 . / ITA NO. 116/NAG/2012 / ASSESSMENT YEAR 2006-07 . / ITA NO. 117/NAG/2012 / ASSESSMENT YEAR 2007-08 . / ITA NO. 118/NAG/2012 / ASSESSMENT YEAR 2008-09 ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1(4), AAYAKAR BHAVAN, NAGPUR 440 001. VS. SHRI NAVAL KUMAR D. BHOOT, RALLIES ROAD, AMRAVATI 444 601. PAN: AARPB 6974 F ( / APPELLANT ) ( / RESPONDENT ) REVENUE BY : SHRI MILIND BHUSARI ASSESSEE BY : SHRI K.P. DEWANI ! '#$ / DATE OF HEARING : 30-01-2013 %& ! '#$ / DATE OF PRONOUNCEMENT : 08-02-2013 '( / O R D E R PER RAJENDRA, AM THE FOLLOWING ARE THE COMMON GROUNDS OF APPEAL FILE D BY THE ASSESSING OFFICER (AO) AGAINST ORDERS DT. 10-01-2012 OF CIT(A )-I, NAGPUR. 1.ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CI T(A) ERRED IN DIRECTING TO RECALCULATE THE INTEREST UNDER SECTION 234A, 2348 AND 234C AFTER GIVING CREDIT TO RS.81,50 ,000/-. ITA NO. 115 116 117 118/NAG/2012 SHRI NAVAL KUMAR D. BHOOT 2 2.ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN DIRECTING TO ADJUST THE SEIZED CASH AGAINST EXISTIN G LIABILITY WHERE THERE IS NO SUCH EXISTING LIABILITY. 3.ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) FAILED TO APPRECIATE THAT THE ENTIRE CASH DOES NOT BELONG TO THE ASSESSEE NOR HE OFFERED THE SAME AS UNDISCLOSED INCOME IN HIS HANDS. 4.ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IGNORED THAT THE SEIZED CASH PERTAINING TO ASSESSEE IS ONLY RS.1 0 LAKHS AND NOT THE ENTIRE SEIZED CASH OF RS.81,50,000/-. 5.ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, , THE LD. CIT(A) ERRED IN APPLYING THE RATIO OF THE JURISDICTIONAL HIGH COURT IN THE INCOME TAX APPEAL NO 3741 OF 2010 DATED 21.09.2011 IN THE CASE OF CIT VS SHR I JYOTINDRA B. MODY WHICH IS DISTINGUISHABLE ON FACTS OF THE ASSESSEES CASE. 6.ANY OTHER GROUND THAT MAY BE URGED AT T HE TIME OF HEARING. 2. A SEARCH WAS CONDUCTED IN THE PREMISES OF THE ASSES SEE ON 22-10-2008. DURING THE COURSE OF SEARCH A SUM OF RS. 81,50,000/ - WAS SEIZED FROM THE PREMISES OF THE ASSESSEE. DETAILS OF INCOME FILED BY THE ASSES SEE CAN BE SUMMARIZED AS UNDER: ASSESSMENT YEAR RETURNED INCOME 2005 - 06 53,94,750/ - 2006 - 07 95,65,630/ - 2007-08 49,83,010/- 2008-09 55,31,950/- 3. ASSESSMENTS WERE COMPLETED BY THE ASSESSING OFFICER (AO) U/S. 143(3) R.W.S. 153A OF THE INCOME TAX ACT, 1961 (ACT) ON 28-12-201 0 ACCEPTING THE RETURNED INCOMES. WHILE PASSING THE ASSESSMENT ORDERS, AO L EVIED INTERESTS ON ASSESSEE U/S. 234A AND 234B OF THE ACT. 4. ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPE LLATE AUTHORITY (FAA). AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, FAA HELD THAT APPELLANT HAD REQUESTED FOR ADJUSTMENT OF CASH AGAINST THE TAX LI ABILITY VIDE HIS LETTER DT. 30-09-2009, THAT MONEY WAS ADJUSTED AGAINST THE DEMAND ON 03-03 -2011, THAT CASH WAS AVAILABLE WITH THE DEPARTMENT SINCE 22-10-2008. 5. RELYING ON THE ORDER OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF JYOTINDRA B. MODY (ITA NO. 3741 OF 2010 DT. 21-09-2 011), FAA HELD THAT AO HAD ERRED IN NOT ADJUSTING THE SEIZED CASH TOWARDS ADVA NCE TAX. HE ALLOWED THE APPEALS FILED BY THE ASSESSEE. 6. BEFORE US, DEPARTMENTAL REPRESENTATIVE (DR) RELIED ON THE ORDER OF THE AO WHEREAS AUTHORISED REPRESENTATIVE (AR) SUPPORTED TH E ORDER OF THE FAA. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE OP INION THAT MATTER IS SQUARELY COVERED BY THE ORDER OF THE HONBLE HIGH COURT IN THE CASE OF JYOTINDRA B. MODY (SUPRA), HONBLE BOMBAY HIGH COURT HELD AS UNDER: ITA NO. 115 116 117 118/NAG/2012 SHRI NAVAL KUMAR D. BHOOT 3 THE BASIC ARGUMENT OF THE REVENUE IS THAT UNDER SE CTION 132B(1)(I) OF THE INCOME TAX ACT, 1961, THE AMOUNT SEIZED DURING THE COURSE OF SEARCH CAN BE DEALT WITH FOR DISCHARGING THE EXISTING LIABILITY UNDER THE ACTS S ET OUT THEREIN IN THE PRESENT CASE, THE TAX LIABILITY RELATING TO THE ASSESSMENT YEAR IN QU ESTION WOULD GET CRYSTALISED ONLY AFTER THE ASSESSMENT IS COMPLETED AND THEREFORE; TH E REQUEST OF THE ASSESSEE FOR ADJUSTMENT OF THE AMOUNTS IN QUESTION TOWARDS THE A DVANCE TAX LIABILITY COULD NOT BE ENTERTAINED. WE SEE NO MERIT IN THE ABOVE CONTENTION, BECAUSE, O NCE THE ASSESSEE OFFERS TO TAX THE UNDISCLOSED INCOME INCLUDING: THE AMOUNT SEIZED DUR ING THE SEARCH, THEN THE LIABILITY TO PAY ADVANCE TAX IN RESPECT OF THAT AMOUNT ARISE EVEN BEFORE THE COMPLETION OF THE ASSESSMENT. SECTION 132B(L)(I) OF THE ACT DOES NOT PROHIBIT UTILIZATION OF THE AMOUNT SEIZED DURING THE COURSE OF SEARCH TOWARDS THE ADVA NCE TAX PAYABLE ON THE AMOUNT OF UNDISCLOSED INCOME DECLARED DURING THE COURSE OF SE ARCH. IN THE PRESENT CASE, THE ASSESSEE, PRIOR TO THE LAST DATE FOR PAYMENT OF LAS T INSTALLMENT O IDVANCE TAX, HAD IN FACT BY HIS LETTER DATED 14TH MARCH, 2007 REQUESTED : THE ASSESSING OFFICER TO ADJUST THE AMOUNTS TOWARDS THE EXISTING ADVANCE TAX LIABILITY. SINCE ADVANCE TAX LIABILITY IS TO BE. COMPUTED AND PAID IN ACCORDANCE WITH THE PROVI SIONS OF THE ACT EVEN BEFORE THE COMPLETION OF THE ASSESSMENT, NO FAULT CAN BE FOUND WITH THE DECISION OF THE ITAT IN HOLDING THAT IN THE FACTS OF THE PRESENT CASE, THE AMOUNTS IN QUESTION WERE LIABLE TO BE ADJUSTED TOWARDS THE EXISTING ADVANCE TAX LIABILITY . RESPECTFULLY FOLLOWING THE SAID ORDER, WE CONFIRM THE ORDER OF THE FAA. GROUNDS OF APPEAL NOS. 1 TO 6 FILED BY THE AO ARE D ECIDED AGAINST HIM. AS A RESULT, ALL THE 4 APPEALS FILED BY THE REVENU E (ITA NO. 115/NAG/12, 116/NAG/12, 117/NAG/12 & 118/NAG/12) STAND DISMISSE D. ORDER PRONOUNCED BY E-BENCH AT MUMBAI ON THIS 8 TH DAY OF FEBRUARY, 2013 )* +,' - *-. / 8 FEBRUARY, 2013 & '( %&0' 1 . SD/- SD/- ( . . / R.K. GUPTA ) ( / RAJENDRA ) ', / JUDICIAL MEMBER $ ', / ACCOUNTANT MEMBER )* MUMBAI, 1' DATE: 8 TH FEBRUARY, 2013 TNMM ITA NO. 115 116 117 118/NAG/2012 SHRI NAVAL KUMAR D. BHOOT 4 COPY TO: 1. APPELLANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR, ITAT, NAGPUR 6. GUARD FILE 0' ' //TRUE COPY// BY ORDER, ASST. REGISTRAR, ITAT