AQUATIC REMEDIES P.LTD, MUMBAI V. ASST CIT CEN CIR 8(2), MUMBAI

ITA 2682/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7789 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 13-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: AJAY NAGPAL
• Section: 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI RAVISH SOOD , JM ./ ITA NO. 2682 / MUM/20 1 7 ( / ASSESSMENT YEAR : 2011 - 12 ) M/S. AQUATIC R EMEDIES PVT. LTD. 218/219, KAILAS PLAZA, VALLABH BAUG CROSS LANE, GHATKOPAR (EAST) MUMBAI - 400075 VS. ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 8(2) AAYAKAR BHAVAN, R OOM NO.670 - A , M.K.ROAD , MUMBAI 400020 ./ ./ PAN/GIR NO. : AABCA3876G ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI AJAY NAGPAL /REVENUE BY : SHRI RAJESH KUMAR YADAV / DATE OF HEARING : 05.12.2017 / DATE OF PRONOUNCEMENT 19 . 12 . 2017 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 50 MUMBAI, DATED 19.10.2016 , FOR THE ASSESSMENT YEAR 20 1 1 - 12 , IN THE MATTER OF ORDER PASSED U/S. 154 OF THE I.T. ACT. 2. THE GRIEVANCE OF THE ASSESSEE RELATES TO NOT ADJUSTING THE CASH OF RS.55,46,500/ - SEIZED U/S.132 ON 21.09.2010 TOWARDS ADVANCE TAX LIABILITY OF THE A.Y.2011 - 12. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. 4. WHILE PASSING THE ORDER U/S.143(3), THE AO DID NOT GIVE CREDIT OF TAX SEIZED TOWARDS ADVANCE TAX LIABILITY AS REQUESTED BY THE ASSESSEE. ITA NO. 2 68 2 /M/2017 2 ACCORDINGLY, EXCESS INTEREST WAS CHARGED U/S.234B AND 234C OF THE ACT . ASSESSEE FILED RECTIFICATION APPLICATION, WHICH WAS REJECTED BY AO AND CONFIRMED BY CIT(A). ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5. AT THE OUTSET LEARNED AR PLACED ON RECORD THE ORDER OF TRIBUNAL IN THE CASE OF SHRI RAJMAL VANIGOTA VS. DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE - 42 IN ITA NO .5003/MUM/2015 DATED 31.08.2 017 WHEREIN EXACTLY SIMILAR ISSUE WAS DEALT BY THE TRIBUNAL, WHEREIN AFTER CONSIDERING DECISIONS OF HONBLE PUNJAB & HARYANA HIGH COURT AND ALLAHABAD HIGH COURTS , AO WAS DIRECTED TO ADJUST THE CASH SEIZED AND ALSO DEPOSITED IN PD ACCOUNT TOWARDS PAYMENT OF ADVANCE TAX LIABILITY FOR THE RELEVANT ASSESSMENT YEAR. THE OBSERVATION OF THE TRIBUNAL ARE AS UNDER: - 7. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDER OF THE AUTHORITIES BELOW AND CASE LAWS RELIED ON. IT IS AN UNDISPUTED FACT THAT ASSESSEE ON 15.03.2011 FILED A LETTER BEFORE THE DEPUTY DIRECTOR OF INCOME TAX (INVESTIGATION), REQUESTING FOR ADJUSTMENT OF CASH SEIZED AND ALSO DEPOSITED IN PD ACCOUNT TOWARDS ADVANCE TAX FOR THE ASSESSMENT YEAR 2011 - 12. REVENUE AUTHORITIES HAVE NOT ACTED ON THIS R EQUEST OF THE ASSESSEE. THE AGRA BENCH IN THE CASE OF ACIT V. SUNIL CHAND GUPTA (SUPRA) AFFIRMED THE ORDER OF THE LD.CIT(A) IN HOLDING THAT WHEN A REQUEST WAS MADE BY THE ASSESSEE FOR ADJUSTMENT OF CASH SEIZED AGAINST ADVANCE TAX LIABILITY SUCH CASH SEIZE D SHOULD BE ADJUSTED AGAINST ADVANCE TAX LIABILITY. THE COORDINATE BENCH OF THE ITAT AGRA BENCH WHILE AFFIRMING THE ORDER OF THE LD.CIT(A) HAS TAKEN NOTE OF VARIOUS DECISIONS OF HIGH COURTS INCLUDING THE DECISION OF THE BOMBAY IN THE CASE OF CIT V. SHRI J YOTINDRA B. MODI DATED 21.01.2011. THE CIRCULAR ISSUED BY THE CBDT ALSO SUPPORTS THE VIEW OF THE ASSESSEE WHEREIN IT HAS BEEN CLARIFIED THAT THE VIEW OF HONBLE PUNJAB AND HARYANA HIGH COURT IN CASE OF COSMOS BUILDERS AND PROMOTERS LTD. AND THE VIEW OF H ONBLE ALLAHABAD HIGH COURT IN THE CASE OF SUNIL CHANDRA GUPTA WHEREIN IT HAS BEEN HELD THAT INSERTION OF EXPLANATION 2 TO SECTION 132B OF THE ACT WITH EFFECT FROM 01.06.2013 IS PROSPECTIVE, HAS BEEN ACCEPTED. THE CBDT ALSO CLARIFIED THAT SEVERAL COURTS H AVE HELD THAT MONEY SEIZED IS TO BE ADJUSTED AGAINST ADVANCE TAX LIABILITY ON REQUISITION BY THE ITA NO. 2 68 2 /M/2017 3 ASSESSEE. IN THE CIRCULAR IT IS ALSO SAID THAT APPEALS FILED BY THE REVENUE ON THIS ISSUE FOR THE CASES PRIOR TO 01.06.2013 BE WITHDRAWN / NOT PRESSED. 8. THE REFORE, IN VIEW OF WHAT IS DISCUSSED ABOVE WE DIRECT THE ASSESSING OFFICER TO ADJUST THE CASH SEIZED AND ALSO DEPOSITED IN PD ACCOUNT TOWARDS PAYMENT OF ADVANCE TAX INSTALMENT FOR THE ASSESSMENT YEAR 2011 - 12 AND RE - COMPUTE THE TAX LIABILITY ACCORDINGLY. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. 6. WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS ORDERS OF THE TRIBU NAL AND HIGH COURTS AS DISCUSSED ABOVE. AS THE FACTS AND CIRCUMSTANCES DURING THE YEAR UNDER CONSIDE RATION ARE SAME, R ESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL WE DIRECT THE AO TO GIVE CREDIT OF THE CASH SEIZED TOWARDS ADVANCE TAX LIABILITY AS PER REQUEST OF ASSESSEE VIDE LETTER DATED 23/12/2010 . WE DIRECT ACCORDINGLY. 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . O RDER PRONOUNCED IN THE OPEN COURT ON THIS 19 .12. 201 7 . S D/ - ( RAVISH SOOD ) S D/ - ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 19 . 1 2 . 2017 MP / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBA I 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6 . / GUARD FILE. //TRUE COPY//