Appeal Details
Counselvise Citation
[2021] 107 COUNSELVISE.COM (IT) 7660 (ITAT-HYDERABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 2 month(s) 14 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
25-08-2021
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
DB-B
Next Hearing Date
18-08-2021
Assessment Year
2014-2015
Appeal Filed On
11-06-2018
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER ITA NO. A.Y. APPELLANT RESPONDENT 1250/HYD/18 2014-15 JT.COMMISSIONER OF INCOME TAX (OSD), HOLDING THE POST OF CENTRAL CIRCLE-1(2), HYDERABAD M/S.SRI VENKATESH GRANITES PRIVATE LIMITED, HYDERABAD [PAN: AANCS0546D] 1251/HYD/18 1278/HYD/18 M/S.SRI VENKATESH GRANITES PRIVATE LIMITED, HYDERABAD [PAN: AANCS0546D] DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1(2), HYDERABAD FOR REVENUE : SMT. S.PRAVEENA, DR FOR ASSESSEE : SMT. V.SREELATHA, AR DATE OF HEARING : 18-08-2021 DATE OF PRONOUNCEMENT : 25-08-2021 O R D E R PER S.S.GODARA, J.M. : THE INSTANT BATCH OF THREE CASES PERTAINS TO A SINGLE ASSESSEE M/S.SRI VENKATESH GRANITES PVT. LTD. HEREIN. THE REVENUES APPEAL ITA NO.1250/HYD/2018 ARISES AGAINS T THE CIT(A)-11, HYDERABADS ORDER DT.19-03-2018, PASSED I N CASE NO.0303/2017-18/DCIT-CENTRAL CIRCLE-1(2), HYD/CIT(A) -11, HYD/17-18. ITS NEXT APPEAL FOLLOWED BY ASSESSEES CR OSS- APPEAL ITA NOS.1251/HYD/2018 AND 1278/HYD/2018 ARE DIRECTED AGAINST CIT(A)-11, HYDERABADS ORDER(S) DT.1 9-03- 2018, PASSED IN CASE NO.0019/2017-18/DCIT-CENTRAL CI RCLE- ITA NOS. 1250, 1251 & 1278/HYD/2018 :- 2 -: 1(2), HYD/CIT(A)-11, HYD/17-18, RELEVANT PROCEEDINGS ARE U/S.143(3) IN FIRST AND U/S.271AAB OF THE INCOME TAX ACT, 1961 [IN SHORT, THE ACT] IN LATTER TWIN CASES; RESPECTI VELY. HEARD BOTH THE PARTIES. CASE FILES PERUSED. 2. COMING TO THE REVENUES QUANTUM APPEAL ITA NO.1250/HYD/2018, WE FIND THAT ITS SOLE SUBSTANTIVE GRI EVANCE SEEKS TO REVIVE THE ASSESSING OFFICERS ACTION DENYING APPLICATION OF SEIZED CASH DURING SURVEY ON 25-02-20 14. 3. LEARNED CIT-DR VEHEMENTLY REITERATED THE REVENUES PLEADINGS THAT THE CIT(A) HAS ERRED IN LAW AND ON FAC TS IN HOLDING THE ASSESSEES CASH SEIZED AS ELIGIBLE FOR A DJUSTMENT AGAINST ADVANCE TAX ALONG WITH SECTION 234A, 234B AND 234C INTEREST(S) INVOLVING VARYING SUMS. SHE QUOTED SECTI ON 132B, EXPLANATION-2 INSERTED IN THE ACT, VIDE FINANCE ACT, 201 3 W.E.F.01-06-2013 THAT AN EXISTING LIABILITY DOES N OT INCLUDE ADVANCE TAX PAYABLE IN ACCORDANCE WITH THE PROVISIONS OF PART- C. SHE FURTHER SOUGHT TO BUTTRESS THE POINT THAT THE CBDT HAS ALSO ISSUED ITS CIRCULAR DT.06-12-2017 THROWING AMPLE LIGHT ON THE ISSUE AND THEREFORE, THE ASSESSING OFFICER HAD RIG HTLY DENIED THE IMPUGNED ADJUSTMENT RELIEF. 4. LEARNED AUTHORISED REPRESENTATIVE ON THE OTHER HAND HAS DRAWN STRONG SUPPORT FROM THE CIT(A)S FINDINGS UNDER CHALLENGE. SHE FIRST OF ALL STATED THAT THE SURVEY IN QU ESTION INVOLVED CASH SEIZURE OF RS.2.1 CRORES. THE ASSESSE E FILED ITS LETTER DT.02-12-2014 REQUESTING THE DEPARTMENT TO ADJUST ITS SEIZED CASH AGAINST ADVANCE TAX LIABILITY. AND THAT THE CIT(A)S LOWER APPELLATE ORDER UNDER CHALLENGE HAS GRANTED THE IMPUGNED RELIEF TO THE EXTENT OF THE LATTER THREE HEADS O F ITA NOS. 1250, 1251 & 1278/HYD/2018 :- 3 -: SECTION 234A, 234B AND 234C INTEREST(S) ONLY IN PARA S 4.1 AND 5 IN PG.10 AND 11 OF HIS ORDER. THE VEXED QUESTION THAT ARISES FOR OUR APT ADJUDICATION THEREFORE IS AS TO WHETHER THE FOREGOING THREE HEADS I.E ., SEC. 234A, 234B AND 234C INTEREST(S) DESERVE TO BE ADJUSTED AGAINST THE SEIZED CASH OR NOT? OUR ADJUDICATION TO TH E SAME GOES IN ASSESSEES FAVOUR AND AGAINST THE DEPARTMENT. THIS IS FOR THE REASON THAT SECTION 132(B)(1)(I) ITSELF INCLUDE S THE AMOUNT OF LIABILITY DETERMINED ON COMPLETION OF THE ASSESSMENT U/S.153A AND THE ASSESSMENT OF THE YEAR RELE VANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS INITIATED OR R EQUESTED IS MADE .. OR INTEREST PAYABLE IN CONNECTION WITH SUCH ASSESSMENT. THAT BEING THE STATUTORY POSITION, WE HOL D THAT THE CLINCHING STATUTORY EXPRESSION ADVANCE TAX (SUPRA ) IN EXPLANATION-II THEREOF DOES NOT DEEMED TO HAVE INCLUDED ANY INTEREST WHICH IS ALREADY TREATED AS ALLOWABLE IN SUB- SECTION (1)(I) HEREIN ABOVE. WE THEREFORE FIND NO MERIT IN TH E REVENUES SOLE SUBSTANTIVE GRIEVANCE GOING BY THE PRINCIPLES OF STRICTER INTERPRETATION AS PER HON'BLE APEX COURTS RECENT LAND MARK JUDGMENT IN COMMISSIONER OF CUSTOMS VS. DILIP KUMAR ( 2018) 9 SCC 1 (FB)(SC). WE THUS ADOPT THE VERY PRINCIPLE MUTATIS MUTANDIS TO REJECT REVENUES INSTANT SOLE GRIEVANCE AS WELL AS THE EARLIER APPEAL ITA NO.1250/HYD/2018. 5. NEXT COMES THE REVENUES AND ASSESSEES CROSS APP EALS ITA NOS.1251/HYD/2018 AND 1278/HYD/2018 DEALING WIT H SECTION 271AAB PENALTY ISSUE. SUFFICE TO SAY, IT TRAN SPIRES AT THE OUTSET THAT THE ASSESSING OFFICERS PENALTY ORDER DT.3 1-08- 2016 HAD NOWHERE SPECIFIED AS TO WHETHER THE ALLEGED UN- DISCLOSED INCOME SATISFIED THAT THE CORRESPONDING STATU TORY ITA NOS. 1250, 1251 & 1278/HYD/2018 :- 4 -: PARAMETERS PRESCRIBED IN SECTION 271AAB, EXPLANATION ( C)(I)(A) & (B) AND (II) NOT BEEN RECORDED OR BEFORE THE DATE OF SEARCH IN THE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE RELATING TO SUCH PREVIOUS YEAR OR OTHERW ISE NOT DISCLOSED BEFORE THE SPECIFIED AUTHORITY (IES) OR IT HAD SURFACED, EITHER WHOLLY OR PARTLY BY .. IN RESPECT OF EXPENS E RECORDED. WE THEREFORE FIND NO REASON TO SUSTAIN T HE IMPUGNED SECTION 271AAB PENALTY AS WELL FOR THIS SOLE REASON ALONE. THE REVENUES APPEAL ITA NO.1251/HYD/2018 F AILS AND ASSESSEES CROSS APPEAL ITA NO.1278/HYD/2018 SUCCEE DS THEREFORE. 6. TO SUM-UP, BOTH THE REVENUES APPEALS 1250 & 1251/HYD/2018 ARE DISMISSED AND ASSESSEES APPEAL I TA NO.1278/HYD/2018 IS ALLOWED. A COPY OF THIS COMMON O RDER BE PLACED IN THE RESPECTIVE CASE FILES. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH AUGUST, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S.G ODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER HYDERABAD, DATED: 25-08-2021 TNMM ITA NOS. 1250, 1251 & 1278/HYD/2018 :- 5 -: COPY TO : 1.JT.COMMISSIONER OF INCOME TAX (OSD), HOLDING THE POST OF CENTRAL CIRCLE-1(2), HYDERABAD. 2.DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE -1(2), HYDERABAD. 3.M/S.SRI VENKATESH GRANITES PRIVATE LIMITED, FLAT NO.44042, JANAPRIYA UTOPIA, RAJENDRA NAGAR, ATTAPUR , TELANGANA. 4.CIT(APPEALS)-11, HYDERABAD. 5.CIT(CENTRAL)-HYDERABAD. 6.D.R. ITAT, HYDERABAD. 7.GUARD FILE.
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