ACIT CEN CIR-8 RG-2, MUMBAI V. RAKSHA BULLION, MUMBAI

ITA 5442/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 0971 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 21-07-2010
• Assessment Year: 2007-2008
• Appeal Filed On: 01-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJIT K SINHA
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI R.K. PANDA. ACCOUNTANT MEMBER I.T.A. NO. 5442/MUM/2009 ASSESSMENT YEAR : 2007-08 ASST. CIT, CENTRAL CIRCLE-8 C. RG.2, 8 TH FLOOR, OLD CGO BUILDING ANNEXE MK ROAD, MUMBAI-400 020 VS. M/S. RAKSHA BULLION 118/120, SILVER PLAZA, DHANJI STREET, MUMBAI-400 003 PAN: AAHFR2224C APPELLANT RESPONDENT ASSESSEE BY : SHRI AJIT K. SINHA RESPONDENT BY : SHRI PIYUSH CHHAJED ORDER DATE OF HEARING: 21.07.2010 DATE OF ORDER: 29.07.2010 PER R.K. PANDA, AM: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER DATED 29 TH JULY, 2009 OF THE CIT(A), CENTRAL-II, MUMBAI RELATING TO ASSESSMENT YEAR 2007-08. 2. THE ONLY EFFECTIVE GROUND RAISED BY THE REVENUE REA DS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DIRECTING T HE ASSESSING OFFICER THAT OUT OF SEIZED CASH OF RS.80. 20 LAKHS, CASH OF RS.30.66 LAKHS BE TREATED AS ADVANCE TAX AND ASSESSEE BE GIVEN CREDIT THEREOF IN CALCULATING THE TAX AND INTEREST LIABILITY SPECIALL Y WHEN THIS AMOUNT HAS NOT BEEN PAID AS ADVANCE TAX WITHIN THE PROVISIONS OF THE INCOME-TAX ACT, 1961. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT DURING THE CO URSE OF SEARCH ON 29-12-2006 CASH AMOUNTING TO RS.80,20,000 /- WAS FOUND AND SEIZED. THE SAID CASH WAS DEPOSITED BY TH E DDI (INV.) IN THE P.D. ACCOUNT IN THE NAME OF THE DIRECTOR OF INCOME-TAX (INVESTIGATION), MUMBAI. THE ASSESSEE, VIDE LETTER DATED I.T.A. NO. 5442/MUM/2009 M/S. RAKSHA BULLION ==================== 2 15.03.2007, REQUESTED THE ADDL. DIT (INV.), MUMBAI , TO ADJUST RS.30,66,000/- AGAINST THE ASSESSEES ADVANCE-TAX I NSTALLMENTS FOR THE RELEVANT ASST. YEAR 2007-08 OUT OF THE SEIZ ED CASH OF RS.80,20,000/-. A SIMILAR REQUEST WAS ALSO MADE TO THE JURISDICTIONAL AO VIDE ASSESSEES LETTER DATED 15-0 3-2007. THEREAFTER, THE ASSESSEE MADE ANOTHER REQUEST TO TH E JURISDICTIONAL AO VIDE LETTER DATED 30-03-2007 EXPL AINING THE PROVISIONS OF SEC. 132B OF THE ACT AND REITERATED I TS REQUEST THAT ADVANCE-TAX DUE OF RS.30,66,000/- SHOULD BE ADJUSTE D OUT OF THE SEIZED CASH OF RS.80,20,000/-. SIMILAR LETTERS WERE ADDRESSED TO THE RANGE ADDL. CIT AS WELL AS THE AD DL. DIT(INV.). THEREAFTER, THE ASSESSEE WROTE ANOTHER LETTER TO TH E AO AFTER CENTRALIZATION OF SEARCH CASES OF THE GROUP CONCERN S AND MADE FRESH REQUEST FOR ADJUSTING ADVANCE-TAX DUE OF RS.3 0,66,000/- OUT OF THE SEIZED CASH OF RS.80,20,000/- BELONGING TO THE ASSESSEE. SIMILAR REQUESTS WERE MADE TO THE ADDL. D IT(INV.). THEREAFTER, AS PER LETTER DATED 28-09-2007 ADDRESSE D TO THE ADDL. DIT-II(INV.), MUMBAI, THE ASSESSEE REQUESTED RELEASE OF RS.30,66,000/- OUT OF THE SEIZED CASH TOWARDS ADVAN CE-TAX ALREADY FALLEN DUE. THEREAFTER, THE ASSESSEE, VIDE ITS LETTER DATED 12-12-2007, ADDRESSED TO THE ADDL. DIT(INV.), THE C ONCERNED AO AND DIT(INV.) REQUESTED TO ADJUST RS.30,66,000/- O UT OF THE SEIZED CASH TOWARDS ADVANCE-TAX. THE ASSESSEE AGAI N VIDE ITS LETTER DATED 18-12-2008 REQUESTED THE CONCERNED AO TO ADJUST THE TAX DEMAND OF RS.81.87 LAKHS OUT OF SEIZED CASH OF RS.80,20,000/-. THIS TIME, THE JURISDICTIONAL AO AD JUSTED THE TAX AGAINST THE SEIZED CASH VIDE CHALLAN DATED 28-0 2-2009. THERE IS NO DISCUSSION OF NON-ADJUSTMENT OF SEIZED CASH AGAINST ADVANCE-TAX DUE IN THE ORDER OF THE AO. 4. IN APPEAL, THE CIT(A) DIRECTED THE ASSESSING OFFICE R TO TREAT AN AMOUNT OF RS.30,66,000 AS ADVANCE TAX OF M ARCH, I.T.A. NO. 5442/MUM/2009 M/S. RAKSHA BULLION ==================== 3 2007. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 5. AFTER HEARING BOTH THE SIDES, WE FIND THE TRIBUNAL IN APPEAL FILED BY THE ASSESSEE ON THE SAME ISSUE VIDE I.T.A. NO. 5209/MUM/09 ORDER DATED 25 TH JUNE, 2010 HAS DISCUSSED THE ISSUE AND UPHELD THE ORDER OF THE CIT(A) BY HOLDING AS UNDER: 17. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF AO AND CIT(A) AND THE VARIOUS DECISIONS RELIED UPON B Y THE ASSESSEE. THERE IS NO DISPUTE TO THE FACT THAT CASH AMOUNTING TO RS.80,20,000/- WAS FOUND AND SEIZED BY THE DEPARTMENT AND KEPT IN THE P.D. ACCOUNT OF THE DIT(INV.). THERE IS ALSO NO DISPUTE TO THE FACT THAT THE ASSESSEE THROUGH A SERIES OF REQUESTS/REMINDERS REQUESTED THE TAX AUTHORITIES TO ADJUST AN AMOUNT OF RS.30,66,000/- TOWARDS ITS ADVANCE-TAX LIABILITY FOR THE ASST. YEAR 2007-08. THERE IS ALSO NO DISPUTE TO THE FACT THAT THE ENTIR E AMOUNT OF RS.80,20,000/- WAS ADJUSTED BY THE AO ON 18-12-2008 AFTER COMPLETION OF THE ASSESSMENT ON 15-12-2008 AND DEMAND WAS RAISED. WE FIND THE CIT(A), ON THE BASIS OF THE VARIOUS LETTERS ADDRESS ED BY THE ASSESSEE TO THE TAX AUTHORITIES, HAS DIRECTE D THE AO TO TREAT AN AMOUNT OF RS.30,66,000/- AS ADVANCE-TAX FOR MARCH 2007. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ENTIRE AMOUNT OF RS.80,20,000/- SHOULD BE TREATED AS ADVANCE-TAX. WE DO NOT FIND ANY MERIT IN THE ABOVE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE. ADMITTEDLY, ON THE DATE OF SEARCH, THERE WAS NO DEMAND AGAINST THE ASSESSEE AND THE DEMAND WAS CREATED ONLY AFTER COMPLETION OF THE ASSESSMENT U/S.133(3) READ WITH SEC. 153A ON 15-12-2008. PRIOR TO THAT, THE ASSESSEE, VIDE A SERIES OF LETTERS/REMINDERS/REQUESTS HAS SPECIFICALLY ASKED F OR ADJUSTMENT OF RS.30,66,000/- ONLY TOWARDS ADVANCE TAX LIABILITY OUT OF THE SEIZED CASH. WE, THEREFORE , DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) DIRECTING THE AO TO GIVE CREDIT FOR AN AMOUNT OF RS.30,66,000/- TOWARDS ADVANCE-TAX OF MARCH 2007 WHILE CALCULATING THE TAX AND INTEREST LIABILITY OF THE ASSESSEE. ACCORDINGLY, THE SAME IS UPHELD. THE GROUND RAISED BY THE ASSESSEE IS ACCORDINGLY DISMISSED. I.T.A. NO. 5442/MUM/2009 M/S. RAKSHA BULLION ==================== 4 6. IN VIEW OF THE DECISION OF THE TRIBUNAL, THE GROUND RAISED BY THE REVENUE STANDS DISMISSED. 7. BEFORE PARTING WITH THIS ORDER, WE HAVE TO MENTION THAT WHILE DECIDING THE APPEAL FILED BY THE ASSESSEE VID E I.T.A. NO. 5209/MUM/2009 NEITHER THE ASSESSEE NOR THE REVENUE BROUGHT TO THE NOTICE OF THE BENCH THAT AN APPEAL FOR THE S AME ASSESSMENT YEAR IN THE CASE OF THE SAME ASSESSEE HA S BEEN FILED BY THE REVENUE. IT WAS THE DUTY OF THE ASSESSING O FFICER WHO HAS FILED THE APPEAL AGAINST THE ORDER OF THE CIT(A ) TO BRING TO THE NOTICE OF THE CONCERNED DR THAT AN APPEAL HAS A LSO BEEN FILED BY THE REVENUE FOR THE SAME ASSESSMENT YEAR I N CASE OF THE SAME ASSESSEE. IT APPEARS THAT THERE IS NO PROPER COORDINATION BETWEEN THE FIELD OFFICERS AND THE OFFICE OF THE DR FOR WHICH SUCH THINGS ARE HAPPENING AND THE PRECIOUS TIME OF THE B ENCH IS LOST. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS D ISMISSED. PRONOUNCED IN THE OPEN COURT ON 29 TH JULY, 2010 SD/- (D. MANMOHAN) VICE PRESIDENT SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI, DATED 29 TH JULY, 2010 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A). CENTRAL-II, MUMBAI 4. THE CIT, CENTRAL-I, MUMBAI 5. THE DR D BENCH. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI BENCHES, MUMBAI TPRAO