Shri Yograj Sahani, Nagpur V. A.C.I.T.Central Cir.1(3), Nagpur

ITA 340/NAG/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3157 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 30-08-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: MAHAVIR ATAL SHRI A R MEENA
• Keywords: Gift
• Section: 153A; 234B; 54; 132

Judgement Text

1 ITA NOS. 340 & 326/NAG/2013 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. ITA NO. 340/NAG/2013 ASSESSMENT YEAR : 2010 - 11. SHRI YOGRAJ SAHANI, ASSTT. COMMISSIONER OF INCOME - TAX, NAGPUR. VS. CENTRAL CIRCLE - 1(3), NAGPUR. PAN ABYPS6918E . APPELLANT. RESPONDENT. ITA NO. 326/NAG/2013 ASSESSMENT YEAR : 2010 - 11. ASSTT. COMMISSIONER OF INCOME - TAX, SHRI YOGRAJ SAHANI, CENTRAL CIRCLE - 1(3), NAGPUR. VS. NAGPUR. APPELLANT. RESPONDENT., A SSESSEE BY : SHRI MAHAVIR ATAL. DEPARTMENT BY : SHRI A.R. MEENA. DATE OF HEARING : 0 8 - 12 - 2015. DATE OF PRONOUNCEMENT : 15 TH JAN., 2016. O R D E R PER SHRI SHAMIN YAHYA, A.M . THESE CROSS APPEALS BY THE ASSESSEE AND REVENUE EMANATE OUT OF THE ORDER OF LEARNED CIT(APPEALS) - I, NAGPUR DATED 12 - 06 - 2013 AND PERTAINS TO ASSESSMENT YEAR 2010 - 11. 2. ITA NO. 340 /NAG/2013 ( ASSESSEES APPEAL): GROUNDS OF APPEAL READ AS UNDER : 1. THE CIT(APPEALS) ERRED IN NOT GIVING A DEDUCTION UNDER SECTION 54E FOR AN AMOUNT OF RS.57 LAKHS EVEN THOUGH NOT PAID WHEREIN IT WAS 2 ITA NOS. 340 & 326/NAG/2013 ENTIRELY ON ACCOUNT OF NON REL EASE OF THE AMOUNT BY THE AO AND THE INCOME TAX DEPARTMENT. 2. THE CIT ERRED IN DENYING THE RELIEF FROM INTEREST U/S 234A & 234C. 3 . BRIEF FACTS OF THE CASE ARE AS UNDER : A SEARCH & SEIZURE ACTION U/S 132 OF THE I.T. ACT WAS CONDUCTED AT THE RESIDENTIAL PREMISES OF ASSESSEE ON 22 - 01 - 2010. DURING THE SEARCH PROCEEDINGS, THE ASSESSEE ADMITTED TO SELLING THE PLOT OF LAND TO M/S NANDINI REALTORS PRIVATE LIMITED FOR AN AMOUNT OF RS.4,29,45,000/ - , BUT THE SALE PRICE RECORDED IN THE REGISTERED SALE DEED WAS ON LY RS.2,48,88,000/ - . OUT OF THE TOTAL AMOUNT OF RS.4,29,45,000/ - THE ASSESSEE ADMITTED TO HAVE RECEIVED AN AMOUNT OF RS.2,48,88,000/ - BY CHEQUE AND RS.1,80,57,000/ - BY CASH. THE DIRECTOR OF NANDINI REALTORS PRIVATE LIMITED ALSO ADMITTED TO HAVE MADE THE PA YMENT OF RS. 2 CRORES IN CASH WHICH INCLUDES RS.19,43,000/ - BEING THE AMOUNT PAID TO SMT. UMA SABHLOK, DAUGHTER OF THE ASSESSEE TOWARDS HER SHARE. THE ADMISSION OF MAKING THE CASH PAYMENTS WERE MADE IN THE STATEMENTS RECORDED U/S 132(4) OF THE I.T. ACT. 4 . DURING THE COURSE OF SEARCH PROCEEDINGS, THE DEPARTMENT HAS SEIZSED CASH OF RS.70,00,000/ - AND RS.50,00,000/ - FROM THE RES IDENCE OF ONE SHRI LUTHRA AND SHRI SAPRAK, RESPECTIVELY. BOTH THESE PERSONS CATEGORICALLY STATED THAT THE CASH BELONGS TO SHRI YOGRA J SAHANI. SHRI SAHANI ALSO CONFIRMED THAT THE CASH RELATES TO THE MONEY RECEIVED IN RESPECT OF SALE OF LAND 5 . THE ASSESSEE FILED THE RETURN OF INCOME IN RESPONSE TO THE NOTICE U/S 153A DECLARING THE TOTAL INCOME AT RS.1,23,68,630/ - . ON VERIFICATION OF THE COMPUTATION OF INCOME THE AO NOTED THAT THE ASSESSEE COMPUTED THE LONG TERM CAPITAL GAIN AT RS.1, 18,76,024/ - . THE AO SOUGHT DETAILS OF THE CLAIM OF EXEMPTION U /S 54 OF THE I.T. ACT, BY THE ASSESSEE. THE ASSESSEE FURNISHED THE DETAILS ACCORDING TO WHICH A N AMOUNT OF RS.1,03,00,000/ - WAS DEPOSITED IN BANK TOWARDS THE CAPITAL GAINS ACCOUNT. THE ASSESSEE FURTHER CLAIMED AN AMOUNT OF 3 ITA NOS. 340 & 326/NAG/2013 RS.50,00,000/ - DEPOSITED U/S 54EC AND ALSO AN AMOUNT OF RS.57,00,000/ - TOWARDS THE CLAIM OF RS.57,00,000/ - WAS EXPLAINED BY THE ASSESSEE THAT HE REQUESTED THE COMMISSIONER OF INCOME TAX TO DEPOSIT THE AMOUNT FROM THE SEIZED CASH INTO THE CAPITAL GAINS ACCOUNT VIDE HIS LETTER DATED 29 - 07 - 2010. BUT THE AO REJECTED TO CONSIDER THE ABOVE CLAIM AND HELD AS UNDER : (I) THE REFERENCE TO ADJUST SEIZED CASH IS NOT WITHIN THE PURVIEW OF HIS JURISDICTION AND THE SAME CANNOT BE TAKEN COGNIZANCE OF. (II) EVEN OTHERWISE ALSO THERE IS NO EVIDENCE THAT HIS REQUEST WAS ACCEDED AND THE AMOUNT WAS DEPOSITED INTO CAPITAL GAINS ACCOUNT. 6 . UPON ASSESSEES APPEAL WITH REGARD TO THE ADDITION OF RS.57 LAKHS DUE TO NONADJUSTMENT OF SEIZED CASH TO BE UTILIZED TO DEPOSIT INTO CAPITAL GAINS ACCOUNT, LEARNED CIT(APPEALS) NOTED THE ASSESSEES ARGUMENTS AS UNDER : THE APPELLANT ARGUED THAT AT THE TIME OF SEIZURE IT IS CLEAR THAT THE SEIZED CASH BELONGS TO HIM AND ON THE BASIS OF HIS ADMISSION, THE ASSESS MENT W AS MAD E IN H I S H A NDS . SI N CC THE AMOUNT WA S SE IZ E D B Y TH E DEPARTM E NT, HE HAS NO A M OUN T TO D E P O SIT I N TH E C A PIT A L GA I N ACCO UN T . T H E APP E LL ANT HA S AR G U E D TH A T H E WAS NOT EXPECT E D TO DO I MPOSSI BL E AN D I T WAS NOT H IS FAI LUR E I N D E PO S I TI N G THE CAS H , THEREFORE, THE BENEFIT . OF S E CTION 54 SHO U LD B E GI V E N TO H I M A S HIS RE QU EST BEFORE THE COMMISSIONER OF INCOM E T AX TO A DJUST T H E SE IZ ED CASH WAS P L ACED IN TIME . TH E AP P E LL A N T SUB M I TTED THAT T H E AO HA S TO I NT E RPR E T TH E PROVI S ION TO FIND THE S OLUTI O N BU T NOT TO HARP ON THE PROBLEM. T H E APPELLANT CONTENDED THAT NOT RE L EAS I NG T H E SEIZED CASH IS WRONG ON TH E . P A RT O F T HE D E P ARTMENT; THE DEPARTMENT CANNOT TAKE ADVANTAG E OF I TS OW N WRONG BY MA KING TH E A DDITION AND RA I SING A HU GE DE M A ND . IN S UP PORT OF HIS CONT E NTION S R E LI A NC E WERE PL A C E D O N TH E FOLLOWING D EC I S ION S . NARMADA BA C HO ANDOL AN V S ST A T E OF MADHYA P R ADESH A I R 2 0'1 ' 1 SC 19 89 HIR A TIKK OO V S U NION TE R RITORY , C H AN DI GARH AIR 20 0 4 SC 3 6 48 R , AJ K U M AR D E Y V S T A RAPADA D EY AIR 1 987 SC 2 195 LILY THOMOS ETC VS U N I ON OF I NDIA & OTHERS ( 20 0 0) 68CC2 2 4 . UNION OF IN D I A V S H ARPREET SINGH SAND H U(2001) 5SLL 5 9 3 ASHOK KA P IL V S S A N A V A LL AH 65CC342 4 ITA NOS. 340 & 326/NAG/2013 UNION OF IND I A V S M AJ . GAN MAD A NL AL YADA V 45CC 127 TH E C RUX OF T H E APPELLANT'S CONTENTION I S THAT TH E S EIZED CAS H B E L ONGS TO HIM AND SHOULD HAVE B E EN DE P OSIT E D INT O T H E CA PIT A L GAI N ACC OUN T AND BY FAILING TO DO SO, THE D EPARTMENT O U G H T T O H AVE ACCE PT ED HIS C L AIM ON TH E BASIS OF EVIDENCE O F L ETTER WR IT TE N T O TH E C I T FOR ADJUSTM E NT OF S E IZ E D C ASH . 7. CONSIDERING THE ABOVE, LEARNED CIT(APPEALS) ADJUDICATED THE ISSUE AS UNDER: 7 . 2 TH E PROC E DU RE A ND C ONDIT IONS FO R A D J U S TMEN T OF SE I ZE D A SS ETS IS C ON TAI N E D I N THE PROVISIONS OF S E C.132B WHI C H W E R E INTRODUCED BY THE FINANCE ACT, 2002, REPLACING THE EARLIER PROVISIONS. FROM THE ABOVE PROVISIONS IT IS EVIDENT THAT THE READING OF PROVISIONS IT IS EVIDENT THAT THE READING OF PROVISIONS SEC. 132B(1) TO SUB SECTION (3) GIVES AN HARMONIOUS INTERPRETATION THAT THE ADJUSTMENT SHALL BE MADE ONLY IN THE HANDS OF THE PERSON FROM WHOSE CUSTODY TH E ASSET IS SEIZED. HOWEVER, BY EXTENDING THE LEGAL FICTION, IT CAN BE ACCEPTED THAT THE . A D J USTM E N T CA N BE MA D E ON TH E E X I STIN G LIABILITY OF TH E PERSON TO WHOM SU C H ASSET B E L O N G S. H OWEV E R , HERE THE MOOT QUESTION IS WH E TH E R TH E ASS E SS IN G OFF I CE R / C IT AR E IN POSSESSION OF AN Y EV ID E N CE CATEGOR I C AL L Y ESTABLISHING THE OWNERSHIP OF THE . CASH S E IZED. T HE A N SWE R T S AN E MPH ATI C NO. THE APPELLANT MADE TH E R E QUEST TO TH E CI T 29 - 07 - 20 1 0. TH E ASS E SSMENTS W E R E STILL UND E R WA Y . T H E CAS H WAS N O T S E I ZE D FRO M THE APP E LLANT PR E MI S E S . FU R T . H C R T H E P R O V I S I ONS O F SE C T . I ON 1 32 B ALLOWS ADJUSTMENT/ APPLICATION OF THE S E IZ E D ASS ET AS P E R C LAU SE (I)& (II) ONL Y O N TH E E X I S TIN G L I A B I LI T I E S U ND E R IN CO M E T A X A C T, WEALTH TAX ACT, GIFT T AX AC T , IN T ERES T AC T , OR T OWA RD S TH E LI ABILIT Y AROSE AFTER COMPLETION OF ASS E SSM E NT. 7.3 HOWEVER, B Y ' NO ST RETC H O F I M AG INATION, TH E P RO PO S E D A MOUNT SOUGHT TO B E R E P RE S E NT E D BY T H E A PP E LL A NT TH AT WHI C H B E WANTED TO DEPOSIT IN THE CAPITAL G A IN ACC OUNT CAN B E T E RM E D AS . 'EXISTING LIABILITY ' . FURTHER , TH E APP E LLANT A DMITTED THA T TH E AMOUNT SEIZED FROM TH E OTH E R P ERSO NS R E S ID E N C E A S 5 ITA NOS. 340 & 326/NAG/2013 UNA C CO U NT ED ' '' '~' . AM OU R IT . H OW E VE R O N LY BY HIS OWN ADMISSION, TH E OWNERSHIP OVER THE SEIZED ASSET W ILL NOT BECOM E FINAL SO FAR AS IT R E L A T ES TO THE . . APPLICATION OF SEIZ E D A SSETS. TH E AUTHORITY IS D U T Y BO U ND T O APPLY THE ASS E T WHI C H IT I S HOLDIN G IN P D ACCOUNT AS PER THE PROVISIONS OF SECTION 132B. 8. LEARNED CIT(APPEALS) FURTHER DISTINGUISHED RELIANCE OF THE ASSESSEE ON THE DECISION OF ITAT IN THE CASE OF M.J. RAMANI VS. DCIT IN ITA NOS. 383 & 384(BANG) OF 2012. THE LEARNED CIT(APPEALS) FURTHER OBSERVED AS UNDER : 7 . , 5 F U RTHER FROM THE FACTS OF TH E CA S E, J T IS CL EAR L Y SEE N T H AT TH E A PP E LL A N T WAS NOT INT E NDIN G TO DI SC L OSE T H E A MOU NT RECEIVED IN CASH IN TH E R EA L E ST A T E T RANSACTIONS IN HI S R E T U RN OF . INCOME BUT FOR THE S EA R C H A ND SE I Z UR E AC TION. IF HIS IN TE N T I ON , ~ I WA S TO DISCLOSE THE TRANSACTIONS FULL Y, HE W O ULD H A V E D E FINIT E L Y DEPO SITE D THE AMOU N T OF RS. 5 7,OO,OOO: - OUT OF.THE C ASH RECEIV E D - IN HIS BANK ACC OU NT OR WOULD H A V E DIS C LO SE D 1I L T H E S T A T E M ENTS ( . ~ RE C ORD E D ULS 1 32 ( 4 ) . FROM THIS IT IS E VID E N T THAT TH E A PP E LL AN T HAS NEVER HA D AN I NT E NTION TO DI SC LOS E TH E CA SH POR T ION A N D ACCORDING L Y HE OU G HT NOT TO H AVE I NV ESTE D IN TH E A P P LI CAB L E SCHE M ES FOR GETT I NG DEDUCTION AS AVAILABL E IN THE PRO V ISION S O F THE CA PI TAL GAINS OF THE INCOME TAX ACT WITH RESP EC T TO T H E UNACCOUNTED CASH . TH E R E FOR E, IT I S DIFFICUL T T O A G R EE TO T H E CONTENTIONS OF TH E APP E LL A NT, A S TH E R E W A S NO CA S E FOR R E L E A S E O F T H E SE I ZED UNACCOUNT E D CA SH B Y T H E D E P A RTM E NT . I F TH E CONTEN T IONS OF TH E APP E LL A NT W E R E ACCE PT E D , EVE RY A SS E SS EE W ILL TAKE THE SAME LINE OF ARGUMENTS AND TRY TO RELEASE THE UNACCOUNTED CASH IN THE PRETEXT OF INVESTMENT INTO SCHEMES WHICH ARE ELIGIBLE FOR GETTING TAX DEDUCTION AS PER LAW. 7.6 IN VIEW OF THE ABOVE, CONSIDERING TOTALITY OF THE CIRCUMSTANCES, I AM OF THE CONSIDERED OPINION THAT THE APPELLANT DOES NOT GET RELIEF TOWARDS INVESTMENT IN SPECIFIED ASSETS OF THE CASH SEIZED BY THE DEPARTMENT. THE AO HAS RIGHTLY FOLLOWED THE LAW IN NOT R ELEASING THE SEIZED CASH TOWARDS THE CLAIM OF 6 ITA NOS. 340 & 326/NAG/2013 INVESTMENT BY THE APPELLANT IN CAPITAL GAIN ACCOUNT. THEREFORE, THE ADDITION MADE BY THE AO IS UPHELD. 9. AGAINST THE ABOVE ORDER, THE ASSESSEE IS IN APPEAL BEFORE US. 10. WE HAVE HEARD BOTH THE COUNSEL AND PE RUSED THE RECORDS. WE FIND THAT THE LEARNED CIT(APPEALS) HAS PASSED A REASONABLE ORDER. PROCEDURE AND CONDITION OF ADJUSTMENT OF SEIZED ASSETS AS PROVIDED IN SECTION 132 B CLEARLY MANDATES THE REVENUE AUTHORITIES TO ADJUST/APPLY THE SEIZED ASSETS AS PER CLA USE (I) AND (II) ONLY ON THE EXISTING LIABILITIES UNDER INCOME - TAX ACT, WEALTH - TAX ACT, GIFT - TAX ACT, INTEREST TAX ACT OR TOWARDS LIABILITY THERE ARISES AFTER COMPLETION OF ASSESSMENT. BY NO STRETCH OF IMAGINATION, INVESTMENT OF MONEY IN CAPITAL GAIN ACCOU NT CAN BE CONSIDERED WITHIN THE AMBIT OF PROVISIONS OF SECTION 1 AND 2 OF SECTION 132B. REVENUE AUTHORITIES HAVING NO AUTHORITY UNDER THE ACT TO ALLOW ADJUSTMENTS OF SEIZED ASSETS TOWARDS ANYTHING OTHER THAN AN EXISTING LIABILITY UNDER THE I.T. ACT . LEARNED COUNSEL OF THE ASSESSEES PLEA THAT THE FAILURE TO DEPOSIT THE CASH IN CAPITAL ACCOUNT WAS OWNING TO THE NON ACCEPTANCE OF THE ASSESSEES REQUEST BY THE REVENUE CANNOT BE A REASON TO GRANT THE ASSESSEE ANY RELIEF BY THE LEARNED CIT(APPEALS) OR THE ITAT AS ADMITTEDLY THE REQUEST AS BEING MADE BY THE ASSESSEE DOES NOT FALL IN THE REALM OF CONCERNED JURISDICTION . UNDER SUCH CIRCUMSTANCES, WE HAVE NO ALTERNATIVE BUT TO UPHOLD THE ORDER OF LEARNED CIT(APPEALS). 11. IN THE RESULT, APPEAL FILED BY THE ASS ESSEE STANDS DISMISSED. 12. ITA NO. 32 6 /NAG/2013 ( REVENUES APPEAL: ) ON THE ABOVE FACTS, THE ASSESSEE HAD PLEADED BEFORE THE LEARNED CIT(APPEALS) FOR AN ADJUSTMENT OF RS.1,20,000/ - TOWARDS ADVANCE TAX. ON THIS ISSUE LEARNED CIT(APPEALS) HAD ADJUDICATED THE ISSUE AS UNDER : ON THE ISSUE OF INTEREST LEVIED U/S 234A,B&C, AS ALREADY HELD THE ASSESSEE IS NOT ENTITLED FOR ANY ADJUSTMENT OF SEIZED CASH, 7 ITA NOS. 340 & 326/NAG/2013 AND THESE INTERESTS ARE CONSEQUENTIAL IN NATURE. THE APPELLANT SUBMITTED THAT IN THE CASE OF RADHESHYAM CHANDAK ON SIMILAR CIRCUMSTANCES, THE CIT(A) - I, NAGPUR DIRECTED THE AO TO TAKE INTO ACCOUNT CASH SEIZED AS PAYMENT TOWARDS THE ADVANCE TAX AND TO WORK OUT THE INTEREST IF ANY, LEVIABLE. IN SUBMISSION BEFORE ME, THE APPELLANT HAS ALSO RELIED ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN INCOME TAX APPEAL NO. 3741 OF 2010 DATED 21 - 09 - 2011 IN THE CASE OF CIT VS. SHRI . IYOTIRIDRA B. MODI. IN THIS CASE ' THE HON 'BLE JURISDICTIONAL HIGH COURT HAS HELD AS FOLLOWS: - ' THE BASIC ARGUMENT OF THE REVENUE IS THAT UND ER SECTION 132B(I)(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 SET OUT THEREIN. IN THE PRESENT CASE , THE TAX LIABILITY RELATING TO THE .. ASSESSMENT ' YEAR IN QUESTION WOULD GET CRYSTALLIZED ONLY AFTER THE ASSESSMENT IS COMPLETED AND THEREFORE , THE REQUEST OF THE ASSESSEE FOR ADJUSTMENT OF THE AMOUNTS IN QUESTION TOWA R DS THE ADVANCE TAX L IABILITY COULD NOT BE EN T E R TAINED , WE SEE NO MERIT IN THE ABOVE CONTENTION , BECAUSE ONCE THE ASSESSEE OFFERS TO TAX THE UNDISCLOSED INCOME INCLUDING THE AMOUNT SEIZED ' DUR I NG THE SEARCH , THEN THE LIABILITY TO PAY ADVANCE TAX IN RESPECT OF THAT AMOUNT ARISES EVEN BEFORE THE COMPLETION OF THE ASSESSMENT . SECTION 132( B)(I)(I) OF THE ACT DOES NOT PROHIBIT UTILIZATION OF THE , AMOUNT SEIZED DURING THE COURSE OF SEARCH TOWARDS THE ADVANCE TAX PAYABLE ON THE AMOUNT OF UNDISCLOSED I NCOME DECLARED DURING THE COURSE OF SEARCH . IN THE PRESENT CASE , THE ASSESSEE , PRIOR TO THE LAST DATED FOR PAYMENT OF LAST INSTALLMENT OF ADVANCE TAX , HAD IN FACT BY HIS LETTER TO REQUEST THE ASSESSING OFFICER TO ADJUST THE AMOUNTS TOWARDS THE EXISTING ADVANCE TAX LIABILITY . SINCE ADVANCE TAX LIABILITY I S TO BE COMPUTED AND PAID IN ACCORDANCE WITH THE PROVISION OF THE ACT EVEN BEFORE THE COMPLETION OF THE ASSESSMENT , NO FAULT CAN BE FOUND WITH THE DECISION OF THE ITAT IS HOLDING THAT IN THE FACTS OF THE PRESENT CASE , THE AMOUNT IS QUESTION WERE LIABLE TO BE ADJUSTED TOWARDS THE EXISTING ADVANCE TAX L IABILITY . 9 . 1 . THE RATIO OF THE SAID DECISION IS SQUARELY APPLICABLE , TO THE FACTS OF THE APPELLANT'S CASE. WHEN AMOUNT SEIZED FROM THE APPELLANT WAS AVAILABLE WITH THE DEPARTMENT FROM 2 2 .0L . 2 010 ITSELF NON ADJUSTMENT O F THIS AMOUNT TOWARDS THE APPE LL ANT ' S TAX DUES IS NOT JUSTIFIED . RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF THE HON ' BLE BOMBAY HIGH COURT , I HOLD TH A T TH E AO H A S ERR E D IN NOT TR EA TIN G TH E PA Y M E NT OF RS. 1 ,2 0 , 00 , 000/ - TOWARDS 8 ITA NOS. 340 & 326/NAG/2013 THE ADVANC E T A X. THE AO IS DIRECTED TO TR EAT TH E A MOUNT AS PAYMENT TOWARDS THE ADVANCE TAX AND REW ORK T HE INTEREST L E VIED U/S 2348. SINC E 234A & 234C ARE ON I NT E R E ST DUE TO R E TURN E D INCOM E, NO R E LIEF WILL BE AVAILABLE TO THE APPELLANT. 13. AGAINST THE ABOVE ORDER, REVENUE IS IN APPEAL BEFORE US. 14. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. THE ABOVE CASE LAW FROM HONBLE JURISDICTIONAL HIGH COURT DULY MANDATES THAT THE SEIZED CASH BE APPLIED TOWARDS THE ADVANCE TAX LIABILITY OF THE ASSESSEE. THE ONLY DISTINCTION WHICH HAS BEEN HIGHL IGHTED BY THE LEARNED D.R. IN THIS CASE IS THAT THE CASH WAS NOT SEIZED FROM THE ASSESSEE BUT FROM A THIRD PERSON. HOWEVER, IN THIS REGARD, LEARNED COUNSEL OF THE ASSESSEE HAS RELIED UPON THE DECISION OF ITAT , RAJKOT BENCH IN ITA NO. 1172/RJT/2010 IN THE CASE OF SHRI RAM S. SARDA VS. DY.CIT, ORDER DATED 02 - 11 - 2011. IN THE SAID CASE THE TRIBUNAL HAD CONCLUDED IN PARA 15 AS UNDER : 15. AS REGARDS THE THIRD ISSUE WHETHER CASH SEIZED FROM THIRD PARTY CAN BE ADJUSTED AGAINST THE LIABILITY OF THE ASSESSEE, THIS ISSUE BECOMES ACADEMIC AS THE CASH SEIZED FROM THIRD PARTY WAS FOUND TO BE THE CASH OF THE ASSESSEE AND THIS FACT IS NOT DISPUTED. UNDER THE CIRCUMSTANCES, CASH SEIZED FROM THIRD PARTY OR CASH SEIZED FROM THE ASSESSEE WOULD RETAIN THE SAME CHARACTER, WE HAVE TO HOLD THAT IT DOES NOT AFFECT PROCESSING OF SUCH SEIZED CASH. THE SAME IS TO BE TREATED AS CASH SEIZED FROM THE ASSESSEE. IN THE CASE UNDER CONSIDERATION, THE AO HIMSELF HAS GIVEN CREDIT OF THAT AMOUNT AGAINST LIABILITY CREATED AGAINST ASSESSEE. A COPY OF LETTER DATED 21 - 03 - 2011 OF AO ADDRESSED TO THE ASSESSEE FILED BY THE LD. AR HAS BEEN PLACED ON RECDORD. AS THE AMOUNT SEIZED HAS BEEN ADJUSTED AGAINST THE DEMAND CREATED AGAINST ASSESSEE, THE INTEREST UNDER SECTIONS 234A, 234B AND 234C HAVE TO BE CALCULATED AS PER THE ABOVE DISCUSSION. THE AO IS DIRECTED ACCORDINGLY. 15. WE FIND THAT THE FACTS OF THE ABOVE CASE ARE ALSO APPLICABLE IN THE _ 9 ITA NOS. 340 & 326/NAG/2013 PRESENT CASE. IN THE PRESENT CASE ALSO THE CASH SEIZED FROM THE THIRD PARTY HAS BEEN ACCEPTED BY THE REVENUE AS WELL AS THE THIRD PARTY TO BE THE CASH BELONGING TO THE ASSESSEE. IN SUCH CIRCUMSTANCES, ADHERING TO THE DOCTRINE OF STARE DECISIS , WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LEARNED CIT(APPEALS). ACCORDINGLY WE UPHOLD THE SAME. 16. IN THE RESULT, THE APPEAL FILED BY THE REVENUE AS WELL AS THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 15 TH DAY OF JAN., 2016. SD/ - SD/ - (MUKUL K. SHRAWAT) ( SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER. NAGPUR, DATED: 15 TH JANUARY, 2016. COPY FORWARDED TO : 1. SHRI YOGRAJ SAHANI, NEAR KADBI CHOWK, CLERK TOWN, NAGPUR - 440004. 2. A.C.I.T., CENTRAL CIRCLE - 1 (3) , NAGPUR. 3. COMMISSIONER OF INCOME - TAX - , NAGPUR. 4. CIT(APPEALS) - I, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER WAKODE. ASSISTANT REGISTRAR, ITAT, NAGPUR