ACIT, CENTRAL CIRCLE-2(3), Nagpur V. SMT KANIKA BAJAJ, Nagpur

ITA 134/NAG/2012

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3169 (ITAT-NAGPUR)
• Duration Of Justice: 6 year(s) 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 20-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure
• Section: 143(3); 234B; 132

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. 128/NAG/2012 / ASSESSMENT YEAR 2009-10 ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(3), AAYAKAR BHAVAN, NAGPUR 440 001. VS. SHRI VINODKUMAR BAJAJ, 569/540, BAJAJ INDUSTRIES LTD., IMAMBADA ROAD, NAGPUR 440 003 PAN: ACJPB 6313 L . / ITA NO. 134/NAG/2012 / ASSESSMENT YEAR 2009-10 ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(3), ROOM NO. 412, AAYAKAR BHAVAN, NAGPUR 440 001. VS. SMT. KANIKA BAJAJ, 254, PT. RAVISHANKAR SHUKLA MARG, CIVIL LINES, NAGPUR-440 001. PAN: ABSPB 9946 K ( / APPELLANT ) ( / RESPONDENT ) REVENUE BY : SHRI PRAKASH MANE ASSESSEE BY : SHRI RAJESH LOYA ! '#$ / DATE OF HEARING : 30-01-2013 %& ! '#$ / DATE OF PRONOUNCEMENT : 06-02-2013 '( / 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. 02-01-2012 & 30-11- 2011 OF CIT(A)-I, NAGPUR. 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN DIRECTING THE A.O. TO ADJUST THE SEIZED CASH TOWARD S ADVANCE TAX LIABILITY WHICH WAS NOT AN EXISTING LIABILITY AS ON THE DATE OF SEARCH. ITA NO. 128/NAG/2012 ITA NO. 134/NAG/2012 SHRI VINODKUMAR BAJAJ, SMT. KANIKA BAJAJ, 2 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN APPLYING THE DECISION OF THE HONBLE BOMBAY HIGH CO URT IN INCOME TAX APPEAL NO. 3741 OF 2010 DT. 21-09-2011 IN THE CASE OF CIT VS. SHRI JYOTINDRA B MODY WHICH IS CONTRARY TO THE EXTANT PR OVISIONS OF SECTION 132B(1)(I) OF THE ACT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT( A) ERRED IN NOT APPRECIATING THE FACT THAT TERM PAID USED IN SECT ION 234B & 234C MEANS THE DATE OF ADJUSTMENT / ACTUAL PAYMENT. 2. SEARCH AND SEIZURE OPERATIONS U/S. 132 OF THE INCOM E TAX ACT, 1961 (ACT) WERE CONDUCTED AT THE BUSINESS PREMISES OF BAJAJ ST EEL INDUSTRIES LTD., AND OTHERS AS WELL AT RESIDENTIAL PREMISES OF SHRI HARGOVIND BAJA J AND SHRI VINODKUMAR BAJAJ ON 13-08-2008. DURING THE COURSE OF SEARCH, SEVERAL B OOKS OF ACCOUNTS, DOCUMENTS, JEWELLERY AND CASH WERE FOUND AND SEIZED. 3. ASSESSEE, AN INDIVIDUAL, FILED HER RETURN OF INCOME ON 31-03-2010 DECLARING TOTAL INCOME OF RS. 43,91,450/-. ASSESSING OFFICER (AO) FINALISED THE ASSESSMENT U/S. 143(3) OF THE ACT ON 27-12-2010 DETERMINING THE TOT AL INCOME AT RS. 43.91 LAKHS. AO ALSO CHARGED INTEREST U/S. 234A/234B/234C/234D O F 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 VARIOUS LETTERS, THAT IN THIS CASE THE FIRST REQUEST WAS MADE ON 15-09-2008 ON THE DATE WHEN PAYMENT OF ADVANCE TAX DUE FOR THE AY 2009-10, THAT THERE HAD BEEN NO RESPONSE FROM THE DEPARTMENT TO THIS REQUEST OF THE ASSESSEE, THAT AD JUSTMENT WAS MADE ON 29-04-2010 AFTER ASSESSEE HAD FILED HER RETURN OF INCOME ON 31 -03-2010. 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 OF RS. 19,93 ,000/- AS ADVANCE TAX. AO WAS DIRECTED TO TREAT THE AMOUNT SEIZED AS PAYMENT TOWA RDS ADVANCE TAX. 6. BEFORE US, DEPARTMENTAL REPRESENTATIVE (DR) RELIED ON THE ORDER OF THE AO, WHEREAS AR SUPPORTED THE ORDER OF THE FAA. AFTER C ONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE OPINION THAT MATTER IS SQUARELY COVER ED BY THE ORDER OF THE HONBLE HIGH COURT IN THE CASE OF JYOTINDRA B. MODY (SUPRA), HO NBLE BOMBAY HIGH COURT HELD AS UNDER: 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 ITA NO. 128/NAG/2012 ITA NO. 134/NAG/2012 SHRI VINODKUMAR BAJAJ, SMT. KANIKA BAJAJ, 3 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 3 FILED BY THE AO ARE D ECIDED AGAINST HIM. ITA NO. 128/NAG/2012 GROUNDS OF APPEAL AND ORDER OF THE FAA IN THIS CAS E ARE SIMILAR AS THAT OF THE CASE OF SMT. KANIKA BAJAJ I.E., THE DIRECTION OF TH E FAA TO THE AO ADJUST THE SEIZED CASH TOWARDS ADVANCE-TAX LIABILITY. WE HAVE DISMISSED THE APPEAL FILED BY THE AO IN TH E MATTER OF SMT. KANIKA BAJAJ (ITA NO. 134/NAG/2012). AS BOTH CASES ARE ID ENTICAL, SO THE APPEAL FILED BY THE AO IN THIS CASE ALSO STANDS DISMISSED. AS A RESULT, BOTH THE APPEALS FILED BY THE REVENUE IN THE CASES OF SMT. KANIKA BAJAJ (ITA NO. 134/NAG/2012) AND SHRI VINODKUMAR BA JAJ (ITA NO. 128/NAG/2012) ARE TREATED AS DISMISSED. ORDER PRONOUNCED BY E-BENCH AT MUMBAI ON THIS 6 TH DAY OF FEBRUARY, 2013 )* +,' - *-. / 6 TH FEBRUARY, 2013 & '( %&0' 1 . SD/- SD/- ( . . / R.K. GUPTA ) ( / RAJENDRA ) ', / JUDICIAL MEMBER $ ', / ACCOUNTANT MEMBER )* MUMBAI, 1' DATE: 6 TH FEBRUARY, 2013 TNMM ITA NO. 128/NAG/2012 ITA NO. 134/NAG/2012 SHRI VINODKUMAR BAJAJ, SMT. KANIKA BAJAJ, 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