Asstt.Commissioenr of Income Tax ,Central Circle-1(4), Nagpur V. Shri Radheshyam D Chandak, Buldhana

ITA 373/NAG/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93402 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 10-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A R NINAWE
• Section: 143(3); 153A; 234B; 132; 154; 139

Judgement Text

1 ITA NO. 373/NAG/2012 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NO.373/NAG/2012 ASSESSMENT YEAR :2009-10. ASSTT. COMMISSIONER OF INCOME-TAX, SHRI RADHESHYAM D. CHANDAK, CIRCLE-1(4), NAGPUR. V/S. SAMARPAN, CHIKHALI ROAD, BULDHANA-443001 . PAN ADOPC3767F APPELLANT. RESPONDENT. APPELLANT BY : SHRI A.R. NINAWE. RESPONDENT BY : SH RI MUKESH AGRAWAL.. DATE OF HEARING - 12-05-2015 DATE OF ORDER 22 ND MAY,2015 O R D E R PER SHRI MUKUL K. SHRAWAT, J.M. THIS IS AN APPEAL FILED BY THE REVENUE ARISING FR OM THE ORDER OF LEARNED CIT(APPEALS)-I, NAGPUR DATED 31-07-2012. THE GRO UNDS RAISED BY THE REVENUE ARE REPRODUCED BELOW: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) ERRED IN DIRECTING TO RECALCULATE THE INTEREST UND ER SECTION 234A, 234B AND 234C AFTER GIVING CREDIT TO ` .24,95,000/-. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) ERRED IN DIRECTING TO TREAT THE SEIZED CASH OF ` .24,95,000/- AS PAYMENT OF SELF ASSESSMENT TAX. 2 ITA NO. 373/NAG/2012 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) ERRED IN APPLYING THE RATIO OF THE JURISDICTIONAL HIGH COURT IN INCOME TAX APPEAL NO. 3741 OF 2010 DATED 21.09.2011 IN THE CA SE OF CIT VS. SHRI JYOTINDRA B MODY WHICH IS DISTINGUISHABLE ON FACTS OF THE ASSESSEES CASE. 2. THE SHORT ISSUE AS EMERGED FROM THE CORRESPONDIN G ASSESSMENT ORDER PASSED UNDER SECTION 143(3) DATED 27-10-2010 WAS TH AT THE AMOUNT WHICH WAS PAID OF ` .34,95,000/- WAS TO BE TREATED AS TAX PAID AT THE T IME WHEN THE RETURN WAS FILED ON 21-03-2009. A SEARCH UNDER SECTION 132 (1) WAS CONDUCTED ON THE ASSESSEE ON 20 TH MARCH, 2009. THEREAFTER A RETURN WAS FILED UNDER S ECTION 139 READ WITH SECTION 153A ON 3 RD OF DEC., 2010 DECLARING INCOME OF ` .32,19,931/-. THE INCOME DECLARED WAS INCLUSIVE OF AN AMOUNT DIS CLOSED DURING THE SEARCH UNDER SECTION 132(1) OF ` .24,95,000/-. THE RETURNED INCOME WAS ACCEPTED. THEREAFTER THE ASSESSEE HAS MOVED A PETITION UNDER SECTION 154 OF I.T. ACT CLAIMING THAT AN AMOUNT OF ` .24,95,000/- WHICH WAS PAID ON 21-03-2009 I.E. NEXT DAY OF THE DATE OF SEARCH SHOULD BE TREATED AS SELF ASSESSMENT TAX PAID. IT WAS REQUESTED TO GIVE CREDIT OF THE SAID AMOUNT SPECIAL LY WHILE COMPUTING INTEREST UNDER SECTION 234A, 234B AND 234C OF I.T. ACT. THE ASSESSING OFFICER HAS REJECTED THAT PETITION ON THE GROUND THAT THE IMPUGNED AMOUN T WAS NOT THE SELF ASSESSMENT TAX PAID BY THE ASSESSEE BUT IT WAS GIVE N TO THE REVENUE DEPARTMENT IN LIEU OF JEWELLERY AND SILVER FOUND AT THE TIME OF SEARCH. 3. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APP ELLATE AUTHORITY, LEARNED CIT(APPEALS) HAS DISCUSSED FEW CASE LAWS AND THEREU PON ARRIVED AT THE CONCLUSION THAT THE AMOUNT IN QUESTION WAS AVAILABLE WITH THE DEPARTMENT BEING PAID THROUGH DEMAND DRAFT IN FAVOUR OF INCOME-TAX DEPART MENT. THEREFORE, FOLLOWING A DECISION OF BOMBAY HIGH COURT PRONOUNCED IN THE CAS E OF CIT V/S. JYOTINDRA B. 3 ITA NO. 373/NAG/2012 MODY IN INCOME TAX APPEAL NO. 3741 OF 2010 DATED 2 1-09-2011 HE HAS DIRECTED TO GIVE CREDIT OF THE SAID AMOUNT AND RECALCULATE T HE INTEREST. 4. WITH THIS BRIEF FACTUAL BACKGROUND, WE HAVE HEAR D BOTH THE SIDES. THE UNDISPUTED FACT WAS THAT THE SEARCH WAS CONDUCTED O N 20 TH OF MARCH, 2009 AND THE VERY NEXT DAY I .E. ON 21-03-2009 A D.D. OF ` .24,95,000/- WAS HANDED OVER TO THE REVENUE DEPARTMENT. THE ASSESSEE HAS FURNISHED THE RETURN OF INCOME WHEREIN ON ONE HAND OFFERED THE OTHER INCOME OF ` .24,95,000/- BUT SIDE BY SIDE CLAIMED THE SAID AMOUNT AS PRE-PAID TAX ALONG WITH OTHER TAXES. IN SUCH A SITUATION WHEN THE ASSESSEE HAS TREATED THE AMOUNT IN QUESTION SINCE INCEPTION AS A SELF ASSESSMENT TAX AND THAT AMOUNT WAS ALSO U SED BY THE REVENUE DEPARTMENT, HENCE THERE WAS NO LEGAL BASIS TO REJECT THE ASSESSEES REQUEST TO TREAT THE AMOUNT AS SELF ASSESSMENT TAX PAID. ACCOR DING TO US, LEARNED CIT(APPEALS) HAS RIGHTLY FOLLOWED THE DECISION OF H ON BLE BOMBAY HIGH COURT PRONOUNCED IN THE CASE OF CIT V/S. JYOTINDRA B. M ODY IN INCOME TAX APPEAL NO. 3741 OF 2010 DATED 21-09-2011. 5. IN THE RESULT, WE FIND NO FORCE IN THE GROUND RA ISED BY THE REVENUE AND THE SAME IS HEREBY DISMISSED. SD/- SD/- (SHAMIM YAHYA) (MUKUL K. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER. NAGPUR, DATED: 22 ND MAY, 2015. 4 ITA NO. 373/NAG/2012 COPY OF ORDER FORWARDED TO : 1. THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT, NAGPUR. 5. THE D.R., ITAT, NAGPUR. 6. GUARD FILE. T RUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, N AGPUR WAKODE.