Shreeji Prints Pvt.Ltd., Surat V. The ACIT.,Cent.Circle-2, Surat

ITA 359/AHD/2012

• Counselvise Citation: 35920514 RSA 2012
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 12-04-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 08-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift
• Section: 153A; 234B; 132

Judgement Text

ITA NO.3 59/AHD/2012 ASSESSME NT YEAR 2007-08 . 1 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD (BEFORE SHRI A. K. GARODIA A.M. AND SHRI KUL BHARA T.J.M.) I.T.A. NO.359 /AHD/2012 (ASSESSMENT YEAR: 2007 - 08) SHREEJI PRINTS PVT. LTD., 412-A, G.I.D.C., PANDESARA, SURAT. (APPELLANT) VS. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2, AYAKAR BHAVAN, MAJURA GATE, SURAT. (RESPONDENT) PAN: AADCS1502M APPELLANT BY : SHRI HARDIK VORA. RESPONDENT BY : SHRI VINOD TANWANI, SR. D.R. ( )/ ORDER DATE OF HEARING : 12-4-2012 DATE OF PRONOUNCEMENT : 20-4-2012 PER: SHRI KUL BHARAT, J.M. THE PRESENT APPEAL IS DIRECTED AGAINST THE ORDER O F THE CIT(A)-II, AHMEDABAD DATED 21-12-2011 FOR THE ASSESSMENT YEAR 2007-08. 2. THE ONLY ISSUE INVOLVED IN THIS CASE IS CHARGING OF INTEREST UNDER SECTION 234B AND 234C OF THE INCOME TAX ACT OF RS.3 ,32,201 AND ITA NO.3 59/AHD/2012 ASSESSME NT YEAR 2007-08 . 2 RS.43,120/- RESPECTIVELY BY CONSIDERING THE AMOUNT OF RS.8 LACS WHICH HAS BEEN ADJUSTED AGAINST THE ASSESSED TAX AS SELF ASS ESSMENT INSTEAD OF ADVANCE TAX. 3. THE LD. A.R. HAS RELIED UPON THE JUDGMENT OF THI S TRIBUNAL IN ITA NO.570/AHD/2011 FOR THE ASSESSMENT YEAR 2005-06 DAT ED 23-3-2012 IN THE CASE OF ACIT CENTRAL CIRCLE 1(1) AHMEDABAD VS. MEGHMANI INDUSTRIES. WE FIND THAT THE ISSUE IN THE PRESENT CASE IS SQUAR ELY COVERED BY THE ORDER OF THIS TRIBUNAL IN ITA NO.570/AHD/2011 (SUPRA).THE RELEVANT CONTENTS OF THE ORDER ARE REPRODUCED AS UNDER:- THE ISSUE REQUIRED TO BE DECIDED IN THIS CASE IS THAT WHETHER THE MONEY SEIZED DURING THE SEARCH OPERATION CAN BE TREATED AS ADVANCE TAX FROM THE DATE OF ITS SEIZURE. IT WOULD BE APPROPRIATE IF THE RELEVANT PROVISIONS OF LAW ARE REPRODUCED HEREIN FO R THE SAKE OF CLARITY. 132B (1) THE ASSETS SEIZED UNDER SECTION 132 OR RE QUISITIONED UNDER SECTION 132 OR REQUISITIONED UNDER SECTION 132A MAY BE DEALT WITH IN THE FOLLOWING MANNER, NAMELY:- (I) THE AMOUNT OF ANY EXISTING LIABILITY UNDER THI S ACT, THE WEALTH TAX ACT,1957 (27 OF 1957),THE EXPENDITURE TAX ACT, 1987 (35 OF 1987), THE GIFT TAX ACT, 1958 (18 OF 1958) AND THE INTERE ST TAX ACT, 1974 (45 OF `974), THE AMOUNT OF THE LIABILITY DETERMINE D ON COMPLETION OF THE ASSESSMENT [ UNDER SECTION 153A AND THE ASSESSM ENT OF THE YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS IN ITIATED OR REQUISITION IS MADE, OR THE AMOUNT OF LIABILITY DETERMINED ON C OMPLETION OF THE ASSESSMENT UNDER CHAPTER XIV-B FOR THE BLOCK PERIO D, AS THE CASE MAY BE] (INCLUDING ANY PENALTY LEVIED OR INTEREST P AYABLE IN CONNECTION WITH SUCH ASSESSMENT) AND IN RESPECT OF WHICH SUCH ITA NO.3 59/AHD/2012 ASSESSME NT YEAR 2007-08 . 3 PERSON IS IN DEFAULT OR IS DEEMED 5TO BE IN DEFAULT , MAY BE RECOVERED OUT OF SUCH ASSETS: [PROVIDED THAT WHERE THE PERSON CONCERNED MAKES AN APPLICATION TO THE ASSESSING OFFICER WITHIN THIRTY DAYS FROM THE E ND OF THE MONTH IN WHICH THE ASSET WAS SEIZED, FOR RELEASE OF ASSET AN D THE NATURE AND SOURCE OF ACQUISITION OF ANY SUCH ASSET IS EXPLAINE D] TO THE SATISFACTION OF THE ASSESSING OFFICER, THE AMOUNT O F ANY EXISTING LIABILITY REFERRED TO IN THIS CLAUSE MAY BE RECOVER ED OUT OF SUCH ASSET AND THE REMAINING PORTION, IF ANY, OF THE ASSET MAY BE RELEASED, WITH THE PRIOR APPROVAL OF THE CHIEF COMMISSIONER OR COM MISSIONER, TO THE PERSON FROM WHOSE CUSTODY THE ASSETS WERE SEIZED: PROVIDED FURTHER THAT SUCH ASSET OR ANY PORTION THE REOF AS IS REFERRED TO IN THE FIRST PROVISO SHALL BE RELEASED WITHIN A PERIOD OF ONE HUNDRED AND TWENTY DAYS FROM THE DATE ON WHICH THE LAST OF THE AUTHORIZATIONS FOR SEARCH UNDER SECTION 132 OR FOR REQUISITION UND ER SECTION 132A, AS THE CASE MAY BE, WAS EXECUTED; (II) IF THE ASSET CONSIST SOLELY OR MONEY, OR PARTL Y MONEY AND PARTLY OF OTHER ASSETS, THE ASSESSING OFFICER MAY APPLY SU CH MONEY IN THE DISCHARGE OF THE LIABILITIES REFERRED TO IN CLAUSE (I) AND THE SHALL BE DISCHARGED OF SUCH LIABILITY TO THE EXTENT OF THE M ONEY SO APPLIED. IT IS EVIDENT FROM A BARE READING OF THE AFORESAID PROVISIONS THAT THE EXISTING LIABILITY UNDER THE INCOME-TAX CAN BE DISC HARGED FROM THE ASSETS OR MONEY SEIZED. IN THE PRESENT CASE, THE SE ARCH OPERATION WAS CONDUCTED ON 22-9-2005 AND THE ASSESSEE FILED R ETURN ON 31-5- 2006 DECLARING THE SEIZED MONEY AS INCOME. IN OUR O PINION, IF THE ASSESSEE HAS DECLARED INCOME, DURING THE YEAR UNDER CONSIDERATION IN THAT EVENTUALITY HE IS LIABLE TO PAY ADVANCE TAX AS PER LAW THEREFORE THE A.O. IS REQUIRED TO FIND OUT WHETHER SUCH LIABI LITY WAS EXISTING ON THE DATE OF SEIZURE. IF SUCH LIABILITY IS EXISTING THEN HE IS EMPOWERED TO APPLY/ADJUST THE MONEY SEIZED IN DISCHARGE OF TH E EXISTING LIABILITY EVEN WITHOUT ANY WRITTEN REPRESENTATION FROM THE AS SESSEE. NOW ITA NO.3 59/AHD/2012 ASSESSME NT YEAR 2007-08 . 4 COMING TO THE FACT OF THE PRESENT CASE, IT IS NOT D ISPUTED THAT THE MONEY SEIZED FROM THE PREMISES OF SHRI LALIT PATEL AND SAME WAS SUBSEQUENTLY DECLARED IN THE RETURN OF INCOME FILED ON 31-5- 2006.HENCE, IT CAN VERY WELL BE INFERRED FROM THE R ETURN SO FILED THAT THE RESPONDENT/ASSESSEE WAS REQUIRED TO PAY ADVANCE TAX ON SUCH INCOME AS MANDATED U/S.208 OF THE I. T. ACT. THEREF ORE, IN VIEW OF THE FACT THAT THERE IS NO AMBIGUITY IN THE PROVISION SO FAR APPLICATION/ADJUSTMENT OF THE SEIZED MONEY IS CONCE RNED. FURTHER, THE JUDGMENTS AS RELIED UPON BY THE LD. D.R WOULD NOT A PPLY ON THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE SINCE THIS IS NOT A CASE WHERE APPLICATION U/S. 132(5) IS MADE. MOREOVER, SECTION 132(5) IS NO MORE ON STATUTE BOOK, EVEN OTHERWISE THERE IS DIVERGENCE IN OPINION BETWEEN THE HONBLE HIGH COURT OF MADHYA PRADESH AN D HONBLE DELHI HIGH COURT AS FAIRLY POINTED BY THE LD. D.R. THE ORDER OF THE ITAT DELHI BENCH IN ITA NO.1151/DEL/2008 AS RELIED BY THE LD. D.R. IS ON DIFFERENT SET OF FACTS THEREFORE, IS NOT APPL ICABLE ON THE FACTS IKN THE PRESENT CASE. THE ISSUE WHETHER THE SEIZED MONE Y SHOULD BE APPLIED TOWARDS ADVANCE TAX LIABILITY OF ASSESSEE A ND CREDIT SHOULD BE GIVEN CREDIT THERE-FROM THE DATE OF SEIZURE OF MONE Y HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F ITAT RAJKOT BENCH IN ITA NO.1172/RJT/2010 IN THE CASE OF SHRI R AM S. SARDA V. DCIT AND THE DECISION OF ITAT MUMBAI BENCH IN THE C ASE OF SUDHAKAR M. SHETTY V. ACIT IN ITA NO.4238 & 4239/MU M/2007. RESPECTFULLY FOLLOWING THE RATIO LAID THEREIN WE DO NOT FIND ANY INFIRMITY INTO THE IMPUGNED ORDER. ITA NO.3 59/AHD/2012 ASSESSME NT YEAR 2007-08 . 5 4. IN VIEW OF THIS MATTER, WE ALLOW THE APPEAL OF T HE ASSESSEE AND DIRECT THE A.O. TO GIVE CREDIT OF RS.8 LAKHS AS ADVANCE TA X AS REQUESTED BY THE APPELLANT. 5. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 20- 4 - 2012. SD/- SD/- (A.K. GARODIA) (KUL BHARAT) ACCOUNTANT MEMBER JUDIC IAL MEMBER AHMEDABAD. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-II, AHMEDABAD.. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT, AHMEDABAD . ITA NO.3 59/AHD/2012 ASSESSME NT YEAR 2007-08 . 6 1.DATE OF DICTATION 13 - 4 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 16 / 4 / 2012 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 18 - 4 -2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 20 -4 -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 20 - 4 -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 2 0 - 4 -2012. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..