Shri Narendra Kumar Agrawal, Burhanpur V. The DCIT, Khandwa

ITA 74/IND/2009

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78060 (ITAT-INDORE)
• Duration Of Justice: 5 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-07-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-07-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 20-02-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJEEV VARSHANE
• Assessee Lawyers: S N AGRAWAL; PANKAJ MOGRA CAS
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NO. 74/IND/2009 A.Y. : 2005-06 SHRI NARENDRA KUMAR AGRAWAL, DY. CIT, KHANDWA CHOWK BAZAR, VS BURHANPUR APPELLANT RESPONDENT P.A.N. NO A DAPA0131B APPELLANT BY SHRI S.N. AGRAWAL AND SHRI PANKAJ MOGRA, CAS RESPONDENT BY SHRI RAJEEV VARSHANE, CIT DR DATE OF HEARING : 29.07.2015 DATE OF PRONOUNCEMENT : 29.07.2015 -: 2: - 2 O R D E R PER GARASIA, J.M. THIS IS AN APPEAL IN WHICH THE TRIBUNAL HAS DISPOSE D OF THE APPEAL, BUT THE GROUND NOS. 7 & 8 WERE NOT DISP OSED OF BY THE TRIBUNAL. THEREFORE, THE MISC. APPLICATION WAS FILED AND TRIBUNALS ORDER WAS RECALLED. 2. THE SHORT FACTS OF THE CASE ARE THAT THERE WAS A SE ARCH U/S 132(1) OF THE INCOME-TAX ACT, 1961, UNDERTAKEN BY THE DEPARTMENT AT THE BUSINESS AND RESIDENTIAL PREMISES OF THE MEMBERS OF CHAGANLAL KISHANLAL GROUP AND CERTAIN AD DITIONS WERE MADE. WHILE DECIDING THE APPEAL, THE LD. CIT(A ) HAS HELD THAT DURING THE SEARCH, CASH OF RS. 98,88,000/- WHI CH WAS OWNERSHIP OF THE ASSESSEE. THE ASSESSEE REQUESTED T O TREAT THIS AMOUNT AS ADVANCE TAX AND THIS CASH SEIZED REQUIRES TO BE CONSIDERED AS ADVANCE TAX FOR ALL THE PURPOSES. THE ASSESSEE WANTED TO TAKE THE BENEFIT OF PROVISIONS OF SECTION 132B(4)(A) & (B) AS PER WHICH IF ANY REFUND HAS TO BE MADE AFTER ADJUSTING THE EXISTING LIABILITY OF INCOME TAX AND WEALTH TAX FROM THE -: 3: - 3 SEIZED ASSETS, THE SAME IS TO BE REFUNDED ALONGWITH INTEREST SPECIFIED IN THIS SUB SECTION. MOREOVER, THE ASSESS EE HAS ALSO REQUESTED FOR NOT ALLOWING THE CREDIT OR SET OFF OF INCOME TAX IN PREVIOUS YEAR FOLLOWING THE PRINCIPLES OF TELESCOPI NG. THE TRIBUNAL HAS NOT DEALT WITH THIS ISSUE. THEREFORE, IT MAY BE ALLOWED. 3. THE LD. CIT DR RELIED UPON THE ORDERS OF THE REVENU E AUTHORITIES. 4. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT IN THIS GROUND THE ASSESSEE CLAIMED CR EDIT OF CASH AS SEIZED DURING THE COURSE OF SEARCH ON 21.12.2004 OF RS. 98,88,000/- AS ADVANCE TAX AND THEREBY CLAIMED THAT INTEREST CHARGED BY THE ASSESSING OFFICER U/S 234B AND 234C OF THE ACT WAS WRONG. THE ASSESSEE AFTER THE SEARCH HAS RE QUESTED THE AO TO ADJUST THE CASH AS SIZED FROM THE BUSINES S AND RESIDENTIAL PREMISES OF THE ASSESSEE AND HIS OTHER FAMILY MEMBERS AS ADVANCE TAX IN THE MONTHS OF FEBRUARY AN D MARCH, 2005, BY FILING LETTER FOR ADJUSTMENT. THE C OPY OF THE LETTER ENCLOSED IS BEFORE US BY WAY OF PAPER BOOK. THE ASSESSEE -: 4: - 4 HAS ALSO SUBMITTED THIS LETTER TO ALLOW CASH CREDIT IN THE CASE OF ASSESSEES FATHER IN ASSESSMENT YEAR 2005-06 IN THE CASE OF CHAGANLAL AGRAWAL AND IN THE CASE OF NARENDRA AGRAW AL. THE CASH CREDIT WAS FOUND ALLOWED OF RS. 98,88,000/-. T HE ONLY REQUEST OF THE ASSESSEE THAT THE ASSESSEES CASH SE IZED SHOULD BE TREATED AS ADVANCE TAX FOR ASSESSMENT YEAR 2005- 06 AND CANCEL THE ENTIRE AMOUNT OF INTEREST SO CHARGED U/S 234B AND 234C. WE FIND THAT SIMILAR ISSUE HAD COME UP BEFORE THE VARIOUS TRIBUNAL AND TRIBUNAL IN THE CASE OF I.T.A. T., RAJKOT BENCH IN THE CASE OF SHRI RAM S. SARDA VS. DY. CIT, (2012) 17 TAXMANN.COM 23 (RAJKOT), WHEREIN IT IS HELD THAT AS PER SECTION 132B OF THE INCOME-TAX ACT, 1961, DURING TH E SEARCH OPERATIONS CASH SEIZED FROM THE ASSESSEE AND OTHER PERSONS AND IF THE ASSESSEE MADE A REQUEST TO THE AO TO ADJ UST SEIZED CASH TOWARDS ITS ADVANCE TAX LIABILITY, THE AO CANN OT DENY TO ADJUST AND CHARGE THE INTEREST U/S 234A, 234B AND 2 34C. WE ARE OF THE VIEW THAT THE ASSESSEE IS ENTITLED TO TH E CREDIT OF CASH SEIZED AS ADVANCE TAX. WE, THEREFORE, RESTORE THIS ISSUE TO THE FILE OF AO TO VERIFY OWNERSHIP OF CASH AND THE AO IS -: 5: - 5 DIRECTED TO VERIFY THE CLAIM AND ALLOW THE CLAIM AS STATED ABOVE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED ON THE DATE OF HEARING ON 29 TH JULY, 2015, IN THE OPEN COURT. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 1 ST SEPTEMBER, 2015. CPU* 278