The Deputy Commissioner of Income Tax, Amritsar. V. Dr. Avtar Singh, Amritsar.

ITA 734/ASR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0753 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-05-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 09-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: U S ARORA
• Keywords: Search and seizure; Tax effect
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER [ I.T.A NO.734(ASR)/2014 ASSESSMENT YEAR: 2010-11 DCIT, CENTRAL CIRCLE, AMRITSAR. VS. DR. AVTAR SINGH C/O AMANDEEP HOSPITAL MODEL TOWN, G.T. ROAD, AMRITSAR. PAN:AJIPS6701R (APPELLANT) (RESPONDENT) CROSS OBJECTION NO.12(ASR)/2015 (ARISING OUT OF ITA NO.734(ASR)/2014) ASSESSMENT YEAR: 2010-11 DR. AVTAR SINGH C/O AMANDEEP HOSPITAL MODEL TOWN, G.T. ROAD, AMRITSAR. PAN:AJIPS6701R VS. DCIT, CENTRAL CIRCLE, AMRITSAR. (CROSS OBJECTOR) (RESPONDENT) APPELLANT BY: SH. UMESH TAKYAR (DR) RESPONDENT BY: SH. U.S. ARORA (CA) DATE OF HEARING: 16.05. 2016 DATE OF PRONO UNCEMENT: 18.05.2016 ORDER PER T. S. KAPOOR (AM): THIS IS AN APPEAL FILED BY REVENUE AGAINST THE ORD ER OF CIT(A) DATED 8.09.2014 FOR ASST. YEAR 2010-11. THE ASSESSEE HAS ALSO FILED CROSS ITA NO.734 (ASR)/2014 C .O NO.12(ASR)/2015 ASST. YEAR: 2010-11 2 OBJECTIONS VIDE C.O.NO.12(ASR)/2015 AGAINST THE SAI D ORDER OF LEARNED CIT(A). 2. AT THE TIME OF HEARING, THE LEARNED DR BROUGHT T O OUR NOTICE THAT THAT THE TAX EFFECT INVOLVED IN THE ABOVE SAID APPE AL IS LESS THAN RS.10,00,000/- THEREFORE, DEPARTMENT DO NOT WANT OF PRESS THE SAME. WITH THE ASSISTANCE OF LEARNED AR, WE FOUND THAT TA X EFFECT IN THE APPEAL OF REVENUE IS LESS THAN RS.10,00,000/- AND THEREFOR E, AS PER CBDT INSTRUCTION NO. 21 OF 2015, DATED 10 TH DEC., 2015, WHICH IS BINDING ON THE DEPARTMENT, THE DEPARTMENT IS PRECLUDED FROM FI LING THE PRESENT APPEAL, AS THIS INSTRUCTION IS APPLICABLE RETROSPEC TIVELY. THEREFORE, THE AFORESAID APPEAL CAN NOT SURVIVE ANY LONGER. ACCORD INGLY, THE APPEAL FILED BY THE REVENUE IS DISMISSED AS NOT MAINTAINABLE. 3. IN VIEW OF THE ABOVE, THE APPEAL OF THE REV ENUE IS DISMISSED. 4. NOW, COMING TO THE CROSS OBJECTIONS FILED BY ASS ESSEE. THE LEARNED AR AT THE OUTSET SUBMITTED THAT FILING OF C ROSS OBJECTIONS IS DELAYED BY A PERIOD OF 78 DAYS AND THE SAID DELAY H AD OCCURRED BECAUSE OF THE FACT THAT ASSESSEE HAD FILED AN APPLICATION U/S 154 BEFORE THE CIT(A), LUDHIANA FOR RECTIFICATION OF THE APPELLATE ORDER AND FOR WHICH THE ASSESSEE WAS WAITING, HOWEVER, THE SAID APPLICATION WAS NOT DISPOSED OFF AND THEREFORE, THE ASSESSEE PREFERRED CROSS OBJECTI ONS TO THE APPEAL FIELD BY REVENUE AS THE ISSUES RAISED IN CROSS OBJECTIONS AND IN THE ITA NO.734 (ASR)/2014 C .O NO.12(ASR)/2015 ASST. YEAR: 2010-11 3 RECTIFICATION LETTER BEFORE CIT(A) ARE INEXTRICABLY LINKED AND THEREFORE, HE PRAYED THAT DELAY BE CONDONED. 5. THE LEARNED DR, THROUGH OBJECTED TO THE CONDONA TION OF DELAY, HOWEVER, KEEPING IN VIEW THE FACT THAT ASSESSEES G RIEVANCE RAISED THROUGH AN APPLICATION U/S 154 HAD NOT BEEN ADDRESS ED BY LEARNED CIT(A) AND THEREFORE, KEEPING IN VIEW THE SUBSTANTI AL JUSTICE WE CONDONED THE DELAY AND LEARNED AR WAS ADVISED TO PROCEED WIT H HIS ARGUMENTS. 6. HIGHLIGHTING THE FACTS OF THE CASE THE LEARNED A R SUBMITTED THAT DURING SEARCH PROCEEDINGS CASH WAS SEIZED AND ASSES SEE HAD THROUGH VARIOUS LETTERS REQUESTED THE ASSESSING OFFICER TO CONSIDER THE ADJUSTMENT OF SEIZED CASH AGAINST THE PAYMENT OF AD VANCE TAX DUE FOR THE YEAR UNDER CONSIDERATION, HOWEVER, THE ASSESSING OF FICER DID NOT ACCEPT HIS CONTENTION AND THEREFORE, THE APPEAL WAS FILED WITH THE LEARNED CIT(A) WHO THOUGH ALLOWED THE RELIEF TO THE ASSESSEE RELYI NG UPON THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. ASHOK KUMAR, 334 ITR 355 BUT HE DIRECTED THE AO TO CONSIDER THE ADJUSTMENT OF SEIZED CASH AGAINST ADVANCE TAX PAYMENT FALLING DUE ON 15.12.20 10 WHEREAS THE ASSESSEE IN VARIOUS LETTERS HAD BEEN REQUESTING THE ASSESSING OFFICER TO ADJUST ADVANCE TAX FOR SEPTEMBER QUARTER ALSO AND I N THIS RESPECT OUR ATTENTION WAS INVITED TO COPY OF LETTER ADDRESSED T O THE ADDITIONAL DIRECTOR (INV.) PLACED AT PAPER BOOK PAGE 15, THERE FORE, IT WAS REQUESTED ITA NO.734 (ASR)/2014 C .O NO.12(ASR)/2015 ASST. YEAR: 2010-11 4 THAT ASSESSING OFFICER MAY BE DIRECTED TO CALCULATE INTEREST AFTER ADJUSTMENT OF ADVANCE TAX DUE ON 15.09.2009. 7. THE LEARNED DR RELIED UPON THE ORDERS OF A UTHORITIES BELOW. 8. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT BEFORE LEAR NED CIT(A) THE ASSESSEE SUBMITTED THE FOLLOWING SUBMISSIONS. 2. THE APPELLANT IS AGGRIEVED AGAINST THE ORDER OF THE ASSESSING OFFICER PASSED UNDER SECTION 154 DATED 09.01.2014 WHEREIN T HE ASSESSEE'S REQUEST FOR ADJUSTMENT OF SEIZED CASH OF RS.58,20,2 40/- TOWARDS ADVANCE TAX LIABILITY HAD BEEN REJECTED. THE APPELLANT HAD RAISED THE ISSUE ON THE BASIS OF JUDGMENT OF HON'BLE JURISDICTIONAL HIGH CO URT IN THE CASE OF CIT VS. ASHOK KUMAR 334 ITR 355. I HAVE PERUSED THE ORD ER OF THE ASSESSING OFFICER PASSED UNDER SECTION 154 AND THE FACTS OF T HE CASE. IT IS A MATTER OF RECORD THAT AN AMOUNT OF RS.58,20,240/- HAS BEEN SE IZED DURING THE COURSE OF SEARCH AND SEIZURE OPERATION ON 21.08.200 9 AND THE ASSESSEE HAD REQUESTED FOR THE ADJUSTMENT OF THE SAME AGAINS T THE ADVANCE TAX DUE FOR THE YEAR UNDER CONSIDERATION VIDE HIS LETTER AS FOLLOWS:- 'I) APPLICATION DATED 11.09.2009 ADDRESSED TO THE A DDL. DIT (INV.), AMRITSAR & COPY ENDORSED TO THE CIT-II, AMRITSAR & THE DDIT (INV.), AMRITSAR. II) APPLICATION DATED 10.11.2010 ADDRESSED TO THE A CIT, CC, AMRITSAR. III) APPLICATION DATED 30.11.2010 ADDRESSED TO THE ACIT, CC, AMRITSAR. IV) APPLICATION DATED 03.08.2011 ADDRESSED TO THE A CIT, CC, AMRITSAR. THE LEARNED CIT(A) OBTAINED REMAND REPORT FROM THE ASSESSING OFFICER, WHEREIN THE ASSESSING OFFICER SUBMITTED AS UNDER:- 3. THE ASSESSING OFFICER VIDE HIS REPORT DATED 11. 08.2014 SUBMITTED HIS COMMENTS ON THE CLAIM OF THE APPELLANT ON THE ISSUE S AS UNDER: A REMAND REPORT IN THIS CASE HAS ALREADY BEEN SUBM ITTED VIDE THIS OFFICE LETTER NO.381 DATED 18.07.2014. DURING THE COURSE O F HEARING IN THIS CASE ITA NO.734 (ASR)/2014 C .O NO.12(ASR)/2015 ASST. YEAR: 2010-11 5 ON 30.08.2014 THE ASSESSING OFFICER WAS DIRECTED TO COMMENTS UPON THE GENUINENESS OF THE APPLICATIONS CLAIMED TO HAVE BEE N FILED BY THE ASSESSEE FOR THE ADJUSTMENT OF SEIZED CASH. THE NECESSARY CO MMENTS IN THIS REGARD ARE AS UNDER: APPLICATION DATED 11.09.2009 ADDRESS TO THE ADDL. DIT(INV.), AMRITSAR & THE DDIT(INV.), ASR. THE LETTER DOES NOT RELATE TO THIS OFFICE AND HENCE I CANNOT COMMENT UPON THE SAME. APPLICATION DATED 10.11.2010 ADDRESSED TO THE DCIT, CC, AMRITSAR. THIS APPLICATION IS AVAILABLE IN THE RECORDS OF THIS OFFICE. APPLICATION DATED 30.11.2010 ADDRESSED TO THE ACIT, CC, AMRITSAR. THIS APPLICATION IS AVAILABLE IN THE RECORDS OF THIS OFFICE. APPLICATION DATED 03.08.2011 ADDRESSED TO THE ACIT, CC, AMRITSAR.' THIS APPLICATION IS NOT AVAILABLE IN THE RECORDS OF THIS OFFICE. HOWEVER A SUM OF RS. 36,38,100/- WAS ADJUSTED AGAINST DEMAND U/S 143(1) ON 05.09.2011 THE LEARNED CIT(A) ON THE BASIS OF REMAND REPORT AN D ON THE BASIS OF JURISDICTIONAL HIGH COURT JUDGMENT IN THE CASE OF CIT VS. ASHOK KUMAR, 334 ITR 355 DIRECTED THE ASSESSING OFFICER TO RE-WORK THE INTE REST AFTER ADJUSTMENT OF ADVANCE TAX FALLING DUE ON 15.12.2010 AS HE HELD THAT ASSESSEE FOR THE FIRST TIME HAD MADE APPLICATION FO R ADJUSTMENT OF SEIZED CASH ON 10.11.2010, HOWEVER, WE FIND THAT A COPY OF LETTER DATED 11.09.2009 WRITTEN TO ADDITIONAL DIRECTOR (INV.) RECEIVED BY THE DEPARTMENT ON 14 TH SEPTEMBER, 2009 IS PLACED AT (PB-15), THEREFORE, T HE COMMENT OF ASSESSING OFFICER IN REMAND REPORT THAT THIS LETTER DOES NOT BELONG TO THEM SEEMS TO BE INCORRECT. THEREFORE, IN THE INTEREST OF JUSTICE, WE REMIT THIS ISSUE TO THE OFFICE OF ASSESSING OFFI CER WHO ON THE BASIS OF APPLICATIONS FILED BY ASSESSEE WILL DETERMINE AS TO WHETHER THE ASSESSEE ITA NO.734 (ASR)/2014 C .O NO.12(ASR)/2015 ASST. YEAR: 2010-11 6 WAS ENTITLED FOR ADJUSTMENT OF CASH SEIZED DURING S URVEY SEARCH AGAINST ADVANCE TAX INSTALLMENTS FALLING DUE ON 15.09.2010 OR NOT. NEEDLESS TO SAY THAT ASSESSEE WILL BE PROVIDED SUFFICIENT OPPOR TUNITY OF BEING HEARD. 9. IN VIEW OF THE ABOVE THE CROSS OBJECTIONS ARE AL LOWED FOR STATISTICAL PURPOSES AND THE APPEAL OF THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH MAY, 2016. SD/- SD/- (A.D. JAIN) (T . S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEM BER DATED:18.05.2016. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER