Asstt commissioner of Income-tax Central Circle 1(3), Nagpur V. Shri Rajendra A Kuhite, Nagpur

ITA 122/NAG/2012

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3191 (ITAT-NAGPUR)
• Duration Of Justice: 6 year(s) 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 17-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H WANARE
• Assessee Lawyers: ATUL V SALVE
• Section: 234B

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH , ( E - COURT), MUMBAI , BEFORE SHRI R.K.GUPTA , J M & SHRI RAJENDRA , A M ITA NO. 122 / N AG / 20 1 2 ( ASSESSMENT YEAR : 200 8 - 0 9 ) ACIT, CENTRAL CIRCLE 1(3) , NAGPUR (MS) - 440 001 VS. SHRI RAJENDRA A. KUHITE, PLOT NO. 26, SHIKSHAK COLONY, BHARAT NAGAR, KALAMANA MARKET ROAD, NAGPUR - 440 033 PAN/GIR NO. : A OMPK 7229 D ( APPELLANT ) .. ( RESPONDENT ) /REVENUE BY : M R. H.WANARE /ASSESSEE BY : MR. ATUL V. SALVE DATE OF HEARING : 30 TH JAN ., 201 3 DATE OF PRONOUNCEMENT : 6 TH FEB. ,201 3 O R D E R P ER SHRI R.K.G UPTA, JM : TH IS APPEAL HA S BEEN PREFERRED BY THE DEPARTMENT BEFORE THE ITAT NAGPUR BENCH, NAGPUR, AGAINST THE ORDER OF LEANED CIT (A) - I , NAGPUR (MAHARASHTRA) R ELATING TO THE ASSESSMENT YEAR 200 8 - 0 9 , WHICH HA S BEEN HEARD THROUGH E - COURT, MUMBAI . 2 . THE DEPARTMENT IS OBJECTING IN DIRECTING TO RECALCULATE THE INTEREST UNDER SECTION 234A, 234 B & 234 C OF THE ACT AFTER TAKING INTO CONSIDERATION THE SEIZED CASH OF THE GROUP. ITA NO . 122 /20 1 2 2 3 . BRIEF FACTS OF THE CASE ARE THAT A SEARCH WAS CONDUCTED IN THE PREMISES OF THE ASSESSEE ON 22 - 1 - 2008. AN AMOUNT OF RS. 35,00,000/ - WAS SURRENDERED BY THE ASSESSEE. ASSESSMENT WAS COMPLETED ON 11 - 12 - 2009 ACCEPTING THE RETURNED INCOME. IN THE COUR SE OF THE ASSESSMENT PROCEEDING, THE AO LEVIED INTEREST UNDER SECTION S 234A, 234B, 234C & 234D . 4 . AGAINST THE ACTION OF THE AO, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A) . IT WAS SUBMITTED THAT THE ASSESSEE HAS NOT GIVEN THE BENEFIT OF CASH SEIZED BY THE DEPARTMENT ON THE DATE OF SEARCH. IT WAS ALSO SUBMITTED THAT THE ASSESSEE HAS MADE REQUEST BY LETTER DATED 21 - 2 - 2008 ADDRESSED TO THE ASSISTANT DIRECTOR OF INCOME TAX (INVESTIGATION - I) , BY WHICH IT WAS STATED THAT THE SEIZED AMOUNT SHOULD BE ADJUSTE D AGAINST THE ADVANCED TAX OR TAX PAYABLE IN THE CAE OF FOUR PERSONS I.E. IN THE CASE OF BALWANT KUHITE, RAJENDRA KUHITE, NILKANTH KUHITE AND MRS. MANDATAI KUHITE. ACCORDINGLY, IT WAS SUBMITTED THAT THE ASSESSEE REQUESTED FOR ADJUSTMENT OF CASH AGAINST THE TAX LIABILITY. RELIANCE WAS PLACED ON THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SHRI JYOTINDRA B. MODY, PASSED IN ITA NO. 3714/2010, VIDE DATED 21 - 9 - 2011. AFTER CONSIDERING THE SUBMISSION AND FOLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT, LEARNED CIT(A) FOUND THAT THE ADJUSTMENT OF THE AMOUNT SEIZED DURING THE COURSE OF SEARCH HAS TO BE GIVEN EFFECT BEFORE LEVYING THE INTEREST UNDER SECTIONS 234A, 234B & 234C . ACCORDINGLY, THE AO WAS DIRECTED TO TREAT TH E AMOUNT SEIZED AS PAYMENT TOWARDS ADVANCE TAX AS ON 15 - ITA NO . 122 /20 1 2 3 3 - 2008 AND THE INTEREST UNDER SECTION 234A, 234B & 234 C, IF ANY, MAY THEREFORE, BE REWORKED ACCORDINGLY. 5 . AGGRIEVED THEREBY, THE DEPARTMENT IS IN APPEAL HERE BEFORE THE TRIBUNAL. 6 . LEARNED DR S TATED THAT IN THE CASE OF THE ASSESSEE, NO CASH WAS SEIZED, THEREFORE, DIRECTION OF LEARNED CIT(A) IS NOT JUSTIFIED. 7 . ON THE OTHER HAND LEARNED COUNSEL OF THE ASSESSEE STATED THAT THE AMOUNT WAS SEIZED RELATED SAME GROUP AND AS PER MUTUAL UNDERSTANDI NG OF ALL THE INDIVIDUALS, IT WAS REQUESTED THAT THE SEIZED AMOUNT SHOULD BE ADJUSTED AGAINST THE TAX DEMAND OF RESPECTIVE PERSONS. THEREFORE, THERE IS NO INFIRMITY IN THE FINDING OF THE LEARNED CIT(A) . 8 . AFTER CONSIDERING THE SUBMISSIONS AND PERUSING TH E ORDER OF THE AO AND CIT(A) , WE FOUND NO INFIRMITY IN THE FINDING OF THE LEARNED CIT(A) . LEARNED CIT(A) HAS GIVEN DIRECTION FOLLOWING THE DECISION OF THE HON BLE BOMBAY HIGH COURT IN THE CASE OF JYOTINDRA B. MODY (SUPRA) AND THE DIRECTION IN RESPECT TO AD JUSTMENT OF SEIZED AMOUNT WAS ONLY GIVEN, IF THERE WAS ANY SEIZED AMOUNT THEN ONLY ADJUSTMENT CAN BE GIVEN. SEIZED AMOUNT WAS WITH THE DEPARTMENT AND WHY THE ASSESSEE BY THEIR MUTUAL CONSENT THEY HAVE DIVERTED THE AMOUNT IN THEIR HAND S AND ACCORDINGLY, RE QUEST WAS MADE TO THE ASSISTANT DIRECTOR OF INCOME TAX (INV. - I) . THEREFORE, THE ADJUSTMENT SHOULD HAVE BEEN GIVEN BY THE AO. LEARNED CIT(A) HAS RECTIFIED THE MISTAKE OF THE AO IN WHICH WE ITA NO . 122 /20 1 2 4 SEE NO UNREASONABLENESS. ACCORDINGLY, WE CONFIRM THE ORDER OF THE LE ARNED CIT(A) . 9 . IN THE RESULT , APPEAL OF THE DEPARTMENT IS DISMISSED . ORDER PRONOUNCED IN THE E - COURT ON THIS 6 TH DAY OF FEB , 201 3 . - 201 3 SD/ - SD/ - ( ) ( RAJENDRA ) ( ) ( R.K.GUP TA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 0 6 / 02 / 201 3 . /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI / NAGPUR . 4. / CIT 5. / DR, ITAT, MUMBAI / NAGPUR . 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( DY./ASSTT. REGISTRAR) / ITAT, MUMBAI