SHRI RAVINDER AGGARWAL, JAMMU V. DEPUTY COMMISSIONER OF INCOME TAX , CENTRAL CIRCLE, JAMMU

ITA 411/ASR/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5355 (ITAT-AMRITSAR)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 26-11-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 26-06-2018
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DB, BEN CH AMRITSAR BEFORE SHRI N.K. CHOUDHRY, JM &DR. A.L.SAINI, AM ./ITA NO.411/ASR/2018 ( / ASSESSMENT YEAR: 2014-15) SHRI RAVINDER AGGARWAL C/O SURINDER MAHAJAN & ASSOCIATES, CHARTERED ACCOUNTANTS, 74, VIJAY NAGAR, JALANDHAR-144 001 (PUNJAB). VS. DCIT CENTRAL CIRCLE, JAMMU. ./ ./ PAN/GIR NO.: AMXPA 7889 C (APPELLANT) .. (RESPONDENT) ./ITA NO.407/ASR/2018 ( / ASSESSMENT YEAR: 2014-15) SHRI RAM AGGARWAL C/O SURINDER MAHAJAN & ASSOCIATES, CHARTERED ACCOUNTANTS, 74, VIJAY NAGAR, JALANDHAR-144 001 (PUNJAB). VS. DCIT CENTRAL CIRCLE, JAMMU. ./ ./ PAN/GIR NO.: AQZPA 9424 H (APPELLANT) .. (RESPONDENT) ./ITA NO.403/ASR/2018 ( / ASSESSMENT YEAR: 2014-15) SMT. MEENAKSHI DEVI C/O SURINDER MAHAJAN & ASSOCIATES, CHARTERED ACCOUNTANTS, 74, VIJAY NAGAR, JALANDHAR-144 001 (PUNJAB). VS. DCIT CENTRAL CIRCLE, JAMMU. ./ ./ PAN/GIR NO.: AASPA 5255 H (APPELLANT) .. (RESPONDENT) APPELLANT BY :SH. SURINDER MAHAJAN, CA RESPONDENT BY : SH. CHARAN DASS, DR / DATE OF HEARING : 26/11/2019 /DATE OF PRONOUNCEMENT : 18/02/2020 ITA NOS.411, 407 & 403/ASR/2018 ASSESSMENT YEAR: 2014-15 SHRI RAVINDER AGGARWAL SHRI RAM AGGARWAL SMT. MEENAKSHI DEVI P PP PA AA AG GG GE EE E | || | 2 22 2 / O R D E R PER DR. A.L. SAINI : THE CAPTIONED APPEALS FILED BY DIFFERENT ASSESSEES , PERTAINING TO ASSESSMENT YEAR 2014-15, ARE DIRECTED AGAINST THE SEPARATE ORD ERS PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-5, LUDHIANA, WHICH IN TURN ARI SE OUT OF SEPARATE ORDERS PASSED BY THE ASSESSING OFFICER UNDER SECTION 154 OF THE I NCOME TAX ACT, 1961 (IN SHORT THE ACT) ALL DATED 15.06.2017. 2. SINCE, THE ISSUES INVOLVED IN ALL THE APPEALS AR E COMMON AND IDENTICAL; THEREFORE, THESE APPEALS HAVE BEEN HEARD TOGETHER AND ARE BEIN G DISPOSED OF BY THIS CONSOLIDATED ORDER. FOR THE SAKE OF CONVENIENCE, THE GROUNDS AS WELL AS THE FACTS NARRATED ASSESSEES APPEAL, IN ITA NO. 411/ASR/2018, FOR AY 2014-15HAVE BEEN TAKEN INTO CONSIDERATION FOR DECIDING THE ABOVE APPEALS EN MASSE . 3.THE SOLITARY GRIEVANCE OF THE ASSESSEES IN THESE APPEALS ARE THAT THE CASH AMOUNT SEIZED DURING THE SEARCH OPERATION SHOULD TO BE ADJ USTED AGAINST TAX/ADVANCE TAX PAYABLE BY ASSESSEE, WITH EFFECT FROM 05.09.2013, I .E. THE DATE OF SEARCH. 4. WE HEARD BOTH THE PARTIES AND CAREFULLY GONE THR OUGH THE SUBMISSION PUT FORTH ON BEHALF OF THE ASSESSEE ALONG WITH THE DOCUMENTS FUR NISHED AND THE CASE LAWS RELIED UPON, AND PERUSED THE FACT OF THE CASE INCLUDING TH E FINDINGS OF THE LD. CIT(A) AND OTHER MATERIALS BROUGHT ON RECORD. WE NOTE THAT IN THE ASSESSEE'S CASE, A SEARCH AND SEIZURE OPERATION WAS CONDUCTED ON 04.09.2013. IN O RDER TO BUY PEACE OF MIND AND TO AVOID LITIGATION, THE ASSESSEE HAS OFFERED VOLUNTAR Y RS. 6,15,00,000/- DURING THE COURSE OF SEARCH AND SEIZURE, (VIDE ASSESSEE`S STAT EMENT RECORDED U/S 132(4) OF THE ACT). DURING THE SEARCH AND SEIZURE, THE DEPARTMENT SEIZED CASH TO THE TUNE OF RS.29,74,710/-. LATER ON, THE ASSESSEE FILED ITS RE TURN OF INCOME ON 20.11.2014. THE ASSESSEE HAD NEVER INTIMATED TO THE INCOME TAX DEPA RTMENT THAT HIS SEIZED CASH SHOULD BE ADJUSTED TOWARDS HIS ADVANCE TAX/ TAX LIA BILITY. ITA NOS.411, 407 & 403/ASR/2018 ASSESSMENT YEAR: 2014-15 SHRI RAVINDER AGGARWAL SHRI RAM AGGARWAL SMT. MEENAKSHI DEVI P PP PA AA AG GG GE EE E | || | 3 33 3 BEFORE US, LD COUNSEL PRAYED THAT AMOUNT SEIZED DUR ING THE SEARCH AND SEIZURE OPERATION SHOULD BE ADJUSTED TOWARDS ASSESSEE`S ADV ANCE TAX/TAX LIABILITY, WITH EFFECT FROM DATED OF SEARCH, THAT IS FROM04.09.2013. ON THE OTHER HAND, LD. DR FOR THE REVENUE VEHEMENTL Y SUBMITTED BEFORE THE BENCH, THAT SEIZED CASH SHOULD NOT BE ADJUSTED TOWARDS ASS ESSEES ADVANCE TAX/TAX LIABILITY, AS THE ASSESSEE HAD NEVER INTIMATED TO THE DEPARTMENT ABOUT THE WILLINGNESS TO ADJUST THE SEIZED CASH. PER CONTRA, THE LD. COUNSEL FOR THE ASSESSEE AGAIN SUBMITTED BEFORE THE BENCH THAT SINCE THE SEIZED AMOUNT WAS WITH THE DEPARTMENT AND THE DEPARTMENT WAS USING THE SEIZED AMOUNT, THEREFORE NO ANY INTEREST SHOULD BE LEVIED AND THE ASSESSEE HAS VOLUNTARILY OFFERED THE SEIZED AMOUNT TO BE ADJUSTE D AGAINST HIS INCOME TAX LIABILITY, BY FILING THE INCOME TAX RETURN AND COMPUTATION OF INCOME TAX (VIDE PAGE NO. 9 AND 10 OF PAPER BOOK). WE HAVE GONE THROUGH THE INCOME TAX RETURN AND COMP UTATION OF INCOME TAX (VIDE PAGE NO. 9 AND 10 OF PAPER BOOK) FILED BY THE ASSES SEE AND WE NOTE THAT IT IS ONE SIDED APPROACH ADOPTED BY THE ASSESSEE JUST TO CHEAT THE DEPARTMENT BY DEMONSTRATING THAT ASSESSEE HAS SUO-MOTO ADJUSTED THE SEIZED CASH TOWARDS HIS ADVANCE TAX/TA X LIABILITY. WE NOTE THAT JUST TO MAKE AN ENTRY IN THE RETURN OF INCOME, SUO-MOTO , WITHOUT INTIMATING TO THE DEPARTMENT, IS NOT A COMPLIANCE. HENCE, IT IS ABUNDANTLY CLEAR THAT ASSESSEE HAD NEVER INTIMATED TO THE DEPARTMENT THAT HIS SEIZED CASH SHOULD BE ADJUSTED AGAINST HIS ADVANCE TAX/TAX LIABILITY THER EFORE THE DEPARTMENT IS ENTITLED TO LEVY THE INTEREST ON THE OUTSTANDING DEMAND. ON THE IDENTICAL ISSUE, OUR VIEW IS FORTIFIED BY THE JUDGMENT OF THE CO-ORDINATE BENCH OF INCOME TAX APPELLATE TRIBUNAL, PUNE IN THE CASE OF PUSHPENDRA SUBHASH CHANDRA VS. ACIT [2013] 37 CCH 127(PUNE TRIB.) WHEREIN IT WAS HELD AS FOLLOWS: 5. WE HAVE ALSO HEARD THE LD. DR. HE RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. IN THE PRESENT CASE, THE CASH WAS SEIZED BY ISSUING TH E REQUISITION WARRANT WHICH WAS ADMITTED BY THE ASSESSEE AS HIS INCOME IN THE STATE MENT RECORDED U/S. 132(4) AND IN THE SAID STATEMENT THE ASSESSEE REQUESTED THE REVENUE A UTHORITIES TO ADJUST THE SAID CASH ITA NOS.411, 407 & 403/ASR/2018 ASSESSMENT YEAR: 2014-15 SHRI RAVINDER AGGARWAL SHRI RAM AGGARWAL SMT. MEENAKSHI DEVI P PP PA AA AG GG GE EE E | || | 4 44 4 AGAINST HIS TAX LIABILITY FOR THE A.Y. 2009-10. WE FURTHER FIND THAT THE REQUISITION WARRANT WAS ISSUED ON 08-08-2008 AND CASH WAS SEIZED BY THE RPF WHICH WAS IN THEIR CUSTODY. THE SAID DATE IS ADMITTEDLY BEFORE THE FIRST DATE O F THE PAYMENT OF THE INSTALLMENT OF THE ADVANCE TAX FOR THE A.Y. 2009-10 I.E. 15TH SEPTEMBE R, 2008. WE FIND THAT THE ONLY REASON GIVEN BY THE LD. CIT(A) IS THAT NO SPECIFIC APPLICA TION WAS MADE AND HENCE, MERELY REQUESTING IN THE STATEMENT RECORDED U/S. 132 (4) I S NOT SUFFICIENT. 6. IN THE CASE OF SHRI JYOTINDRA B. MODY (SUPRA) TH E IDENTICAL ISSUE IS CONSIDERED BY THEIR LORDSHIPS. IN THE SAID CASE, IN THE SEARCH AND SEIZ URE ACTION CASH AMOUNTING TO RS.18 LACS WAS TO BE SEIZED. THE ASSESSEE ALSO PAID SUM OF RS. 1.98 CRORES BY PAY ORDER DATED 31-03- 2007. THE ASSESSEE REQUESTED THAT THE CASH SEIZED O F RS.18 LACS AND PAY ORDER AMOUNTING TO RS.1.98 CRORES PAID BY THE ASSESSEE BE ADJUSTED TOWARDS THE ADVANCE TAX PAYABLE ON THE ADDITIONAL INCOME DECLARED BY THE ASSESSEE. DUR ING THE COURSE OF SEARCH IN THE SAID CASE ALSO THE ADDITIONAL INCOME OFFERED BY THE ASSE SSEE HAS BEEN ACCEPTED BUT WITHOUT GIVING THE BENEFIT OF RS.18 LACS SEIZED DURING THE COURSE OF SEARCH AND RS.1.98 CRORE PAID BY THE ASSESSEE TOWARDS THE ADVANCE TAX. THE INTERE ST WAS CHARGED U/S. 234A, 234B AND 234C OF THE INCOME-TAX ACT. THE TRIBUNAL DELETED TH E SAID INTEREST. THE REVENUE HAS CARRIED THE MATTER BEFORE THE HON'BLE HIGH COURT AN D THE HON'BLE HIGH COURT DISMISSED THE APPEAL FILED BY THE REVENUE. THE OPERATIVE PART OF THE DECISION IS AS UNDER: WE SEE NO MERIT IN THE ABOVE CONTENTION, BECAUSE, ONCE THE ASSESSEE OFFERS TO TAX THE UNDISCLOSED INCOME INCLUDING THE AMOUNT SEIZED DURI NG THE SEARCH, THEN THE LIABILITY TO PAY ADVANCE TAX IN RESPECT OF THAT AMOUNT ARISES EV EN BEFORE THE COMPLETION OF THE ASSESSMENT. SECTION 132B(1) (I) OF THE ACT DOES NOT PROHIBIT UTILIZATION OF THE AMOUNT SEIZED DURING THE COURSE OF SEARCH TOWARDS THE ADVA NCE TAX PAYABLE ON THE AMOUNT OF UNDISCLOSED INCOME DECLARED DURING THE COURSE OF SE ARCH. IN THE PRESENT CASE, THE ASSESSEE, PRIOR TO THE LAST DATE FOR PAYMENT OF LAS T INSTALLMENT OF ADVANCE TAX, HAD IN FACT BY HIS LETTER DATED 14TH MARCH, 2007 REQUESTED THE ASSESSING OFFICER TO ADJUST THE AMOUNTS TOWARDS THE EXISTING ADVANCE TAX LIABILITY. SINCE ADVANCE TAX LIABILITY IS TO BE COMPUTED AND PAID IN ACCORDANCE WITH THE PROVISIONS OF THE ACT EVEN BEFORE THE COMPLETION OF THE ASSESSMENT, NO FAULT CAN BE FOUND WITH THE DECISIONS OF THE ITAT IN HOLDING THAT IN THE FACTS OF THE PRESENT CASE, THE AMOUNTS IN QUESTION WERE LIABLE TO BE ADJUSTED TOWARDS THE EXISTING ADVANCE TAX LIABILITY . 7. IN THE CASE OF JAFFERALI KASAMLAI RATTONSEY (SUP RA) RS.41 LACS WERE SEIZED. THE ASSESSEE GAVE THE STATEMENT ON 27-07-2006 IN WHICH HE CATEGORICALLY STATED THAT THE SEIZED CASH MAY BE ADJUSTED AGAINST THE TAX LIABILI TY ARISING OUT OF THE DISCLOSURE. THE ASSESSEE WAS LEVIED THE INTEREST U/S. 234A, 234B AN D 234C DISCARDING THE REQUEST MADE BY HIM. THE MATTER WAS CARRIED TO THE TRIBUNAL AND THE TRIBUNAL DELETED THE INTEREST LEVIED. THE DEPARTMENT CARRIED THE MATTER FURTHER B EFORE THE HON'BLE HIGH COURT AND THE HON'BLE HIGH COURT CONFIRMED THE ORDER OF THE TRIBU NAL DELETING THE INTEREST LEVIED BY THE ASSESSING OFFICER TO THE EXTENT OF CASH SEIZED RS.4 2 LACS. IN OUR OPINION, THE ASSESSEES CASE IS SQUARELY COVERED BY THE DECISION CITED (SUP RA). AS PER THE ASSESSMENT ORDER WE FIND THAT TOTAL INCOME TAX PAYABLE AS PER THE ASSES SMENT ORDER IS TO THE EXTENT OF RS.39,53,215/- WHICH IS MORE LESS THAN THE AMOUNT O F CASH SEIZED BY THE DEPARTMENT. WE, ACCORDINGLY, ALLOW THE GROUNDS TAKEN BY THE ASSESSE E. ITA NOS.411, 407 & 403/ASR/2018 ASSESSMENT YEAR: 2014-15 SHRI RAVINDER AGGARWAL SHRI RAM AGGARWAL SMT. MEENAKSHI DEVI P PP PA AA AG GG GE EE E | || | 5 55 5 IN THE ASSESSEE`S CASE UNDER CONSIDERATION, WE NOTE THAT ASSESSEE HAS NEITHER OFFERED SEIZED CASH DURING HIS STATEMENT UNDER SECTION 132( 4) OF THE ACT NOR HE INTIMATED TO THE DEPARTMENT BY LETTER THAT HIS SEIZED CASH SHOUL D BE ADJUSTED TOWARDS HIS ADVANCE TAX/TAX LIABILITY, THEREFORE WE DO NOT FIND MERIT I N THESE THREE APPEALS FILED BY DIFFERENT ASSESSEES, HENCE WE CONFIRM THE ORDER PASSED BY THE LD. CIT(A). 5. IN THE RESULT, APPEALS FILED BY THE ASSESSEES IN ITA NOS. 411, 407 AND 403/ASR/2018, FOR AY 2014-15 ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 18.02.2020 SD/- S D / - ( N.K. CHOUDHRY ) (A.L.SAINI) ' ' ' ' / JUDICIAL MEMBER / ACCOUNTANT MEMBER AMRITSAR $ / DATE: 18/02/2020 ( BCG, PS ) COPY OF THE ORDER FORWARDED TO: 1. SHRI RAVINDER AGGARWAL, C/O SURINDER MAHAJAN & A SSOCIATES,CHARTERED ACCOUNTANTS, 74, VIJAY NAGAR, JALANDHAR-144 001 (PU NJAB). 2. SHRI RAM AGGARWAL, C/O SURINDER MAHAJAN & ASSOCI ATES, CHARTERED ACCOUNTANTS, 74, VIJAY NAGAR, JALANDHAR-144 001 (PUNJAB). 3. SMT. MEENAKSHI DEVI, C/O SURINDER MAHAJAN & ASSO CIATES, CHARTERED ACCOUNTANTS, 74, VIJAY NAGAR, JALANDHAR-144 001 (PU NJAB) 4. DCIT, CENTRAL CIRCLE, JAMMU. 5. C.I.T(A), BATHINDA. 6. C.I.T.- CONCERNED. 7. THE SR. DR, I.T.A.T., AMRITSAR. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, AMRIT SAR BENCH