ACIT, CC-XII, KOLKATA, Kolkata V. Sri Sajjan Kumar Patwari (HUF), Kolkata

ITA 1648/KOL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3170 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2013
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 09-11-2012
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 234B

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [ () . .. . . .. . , ,, , , !' ##$ %& ##$ %& ##$ %& ##$ %& ] ]] ] [BEFORE HONBLE SRI K.K.GUPTA, AM & HONBLE SRI GEORGE MATHAN, JM] '( '( '( '( /ITA NO.1648/KOL/2012 )&* !+,/ ASSESSMENT YEAR : 2010-11 (%. / APPELLANT ) - !& - ( 01%. /RESPONDENT) A.C.I.T., CENTRAL CIRCLE-XII, M/S.SAJJAN KUMAR PA TWARI (HUF) KOLKATA -VERSUS- KOLKATA. (PAN:AAFHS 3391 K) %. 2 3 / FOR THE APPELLANT: SHRI RAJESH KUMAR, JCIT, SR.DR 01%. 2 3 / FOR THE RESPONDENT: SHRI RAJEEV KUMAR, ADVOCATE &!4 2 5 /DATE OF HEARING : 22.05.2013 6+ 2 5 /DATE OF PRONOUNCEMENT : 22.05.2013 7 / ORDER PER SHRI GEORGE MATHAN, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. C.I.T.(A)- CENTRAL-I, KOLKATA IN APPEAL NO.203/CC-XII/CIT(A)C -II/11-12 DATED 01.08.2012 FOR THE ASSESSMENT YEAR 2010-11. 2. SHRI RAJESH KUMAR, JCIT,SR.DR REPRESENTED ON BE HALF OF THE REVENUE AND SHRI RAJEEV KUMAR, ADVVOCATE REPRESENTED ON BEHALF OF TH E ASSESSEE. 3. IN THE REVENUES APPEAL THE REVENUE HAS RAISED T HE FOLLOWING GROUNDS :- THE LD. CIT(A) ERRED IN RECOMPUTATION OF INTEREST FOR THE BALANCE PERIOD I.E. PRIOR TO 31.07.2010 FOR CHARGING INTEREST U/S 234B AND U/S 2 34C. THERE WAS NO EXISTING LIABILITY OF THE ASSESSEE AS ON THE DATE OF SEARCH ON 16.02.2 010 AND ON 11.10.2010 (I.E. DATE OF SUBMISSION OF RETURN). THE LIABILITY WAS DETERMINED AFTER THE COMPLETION OF THE ASSESSEE U/S 153A/143(3) OF THE ACT. THEREFORE, THE PROVISIO N OF SECTION 132B(1) (I) APPLIES ONLY AFTER THE COMPLETION OF THE ASSESSMENT I.E. ON 27.1 2.2011. HENCE, THE DECISION OF THE HONBLE CIT(A) CENTRAL-I I, KOLKATA IS NOT ACCEPTABLE, MOREOVER THE TAX EFFECT IS ABOVE THE MONETARY LIMIT SPECIFIED IN THE INSTRUCTION NO.3/2011, DT. 09.02.2011 OF CBDT. I TA NO.1648/KOL/2012 ACIT.CC.XII,KOL VS SAJJAN KR.PATWARI (H UF) A.YR.2010-11 2 4. IT WAS SUBMITTED BY THE LD. DR THAT THERE WAS A SEA RCH AND SEIZURE OPERATION ON THE ASSESSEE ON 16.02.2010. CASH TO THE EXTENT OF R S.2,39,07,060/- HAD BEEN FOUND AND SEIZED. THE ASSESSEE HAD MADE DISCLOSURE OF RS.10 C RORES ON 03.05.2010. THE RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 31.07.2010. THE ASSESSMENT WAS COMPLETED ON 27.12.2011. ON 10.05.2010 THE ASSESSEE HAD REQUESTE D FOR ADJUSTING THE SEIZED CASH TOWARDS ADVANCE TAX. THE AO HAD NOT GIVEN THE ASSES SEE THE BENEFIT OF THE ADJUSTMENT OF THE SEIZED CASH WHICH HAD BEEN PRAYED FOR ADJUST MENT BEFORE FILING OF THE RETURN. CONSEQUENTLY THE AO HAD LEVIED INTEREST U/S 234B AN D 234C OF THE ACT. IT WAS THE SUBMISSION THAT THE LD. CIT(A) HAD HELD THAT THE SE IZED CASH WAS LIABLE TO BE ALLOWED AS ADJUSTMENT AS ON 31.07.2010 AND DIRECT THE AO TO RECOMPUTED THE INTEREST. THE LD. DR SUBMITTED THAT THE ORDER OF THE LD. CIT(A) WAS L IABLE TO BE REVERSED. 5. IN REPLY THE LD. AR SUBMITTED THAT THE ASSESSEE HAD REQUESTED FOR ADJUSTMENT OF THE SEIZED CASH MUCH BEFORE FILING OF THE RETURN. I T WAS THE SUBMISSION THAT THE CASH ITSELF WAS SEIZED MUCH BEFORE THE DUE DATE FOR THE LAST INSTALMENTS OF ADVANCE TAX ALSO. HE VEHEMENTLY SUPPORTED THE ORDER OF THE LD. CIT(A) . 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERU SAL OF THE ORDER OF THE LD. CIT(A) SHOWS THAT THE SEIZED CASH WAS AVAILABLE WIT H THE REVENUE RIGHT FORM 16.02.2010. IT IS ALSO NOTICED THAT THE ASSESSEE HA S REQUESTED ON 03.05.2010 TO TREAT THE SEIZED CASH AS ADVANCE TAX. THE ASSESSEE HAVING REQ UESTED FOR THE ADJUSTMENT OF THE SEIZED CASH, THE SAME IS LIABLE TO BE TREATED AS SE LF ASSESSMENT TAX PAID BEFORE FILING OF THE RETURN WHICH HAS BEEN DONE ON 31.07.2010. THE O RDER OF THE LD. CIT(A) IS ON THE RIGHT FOOTING AND DOES NOT CALL FOR ANY INTERFERENC E. 7. IN THE RESULT THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.05.2013. SD/- SD/- [ ., ,, , ] [ .##$ %& , ] [K.K.GUPTA] [ GEO RGE MATHAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER ( (( (5 5 5 5) )) ) DATE: 22.05.2013. R.G.(.P.S.) I TA NO.1648/KOL/2012 ACIT.CC.XII,KOL VS SAJJAN KR.PATWARI (H UF) A.YR.2010-11 3 7 2 0))8 98+:- COPY OF THE ORDER FORWARDED TO: 1. M/S.SAJJAN KUMAR PATWARI (HUF), PREMLATA. 6 TH FLOOR, 39, SHAKESPEARE SARANI, KOLKATA-700001. 2 THE A.C.I.T., CENTRAL CIRCLE-XII, KOLKATA. 3 . CIT KOLKATA 4. CIT(A)- CENTRAL-II, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA 18 0)/ TRUE COPY, 7&/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES