SMT MANORAMA MITTAL L/H SHRI ANAND SHANKAR MITTAL, Jaipur V. DCIT, Jaipur

ITA 773/JPR/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5152 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 18-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DHK
• Assessee Lawyers: ANIL GOYAL CAS
• Keywords: Question of law
• Section: 143(3); 234B; 154; 2

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 773/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09. SMT. MANORAMA MITTAL, L/H SHRI ANAND SHANKAR MITTAL, PROP. ADARSH PRAKASHAN, AMAR JAIN BUILDING, CHOURA RASTA, JAIPUR. CUKE VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ACCPM 1824 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI ANURAG GOYAL & SHRI ANIL GOYAL (CAS) JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL. CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 30.08.2016. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 31/08/2016. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (APPEALS), CENTRAL, JAIPUR DATED 01.10.2014 PERTAINING TO A.Y. 2008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT THE ORDERS OF THE LEARNED AO AND LEARNED CIT ( A) ARE BAD IN LAW AND AGAINST FACTS OF THE CASE. 2. THE LEARNED AO HAS ERRED IN CHARGING HUGE INTEREST OF RS. 3,28,071/- UNDER SECTION 234B AND RS. 88,227/- UNDER SECTION 2 34C IN ITNS 150 DATED 24.3.2011 ACCOMPANYING THE ORDER AND THE LEAR NED CIT (A) HAS ERRED IN CONFIRMING THE SAME. 3. THE LEARNED AO HAS ERRED IN NOT ADJUSTING THE ADVAN CE TAX INSTALLMENTS OUT OF THE PD ACCOUNT OF THE ASSESSEE IN SPITE OF T HE FACT THAT SPECIFIC REQUEST WAS MADE IN THIS REGARD. 4. THE LEARNED CIT (A) HAS ERRED IN NOT FOLLOWING DIRE CT DECISIONS OF ITAT, JAIPUR BENCH ON THE SAME ISSUE IN THE CASE OF THE A SSESSEE HIMSELF. 2 ITA NO. 773/JP/2014 SMT. MANORAMA MITTAL 5. THE LEARNED AO HAS ERRED IN APPROPRIATION OF MORE A MOUNT FROM THE PD ACCOUNT IN ASSESSMENT YEAR 2007-08 BY WITHDRAWING R S. 7,54,661/- FROM AMOUNT ALREADY APPROPRIATED IN ASSESSMENT YEAR 2008 -09 AND THIS HAS RESULTED IN CHARGING F HUGE INTEREST IN ASSESSMENT YEAR 2008-09 AND CREATION OF REFUND IN AY 2007-08. 6. THE LEARNED CIT(A) HAS ERRED IN RELYING HEAVILY ON THE CLARIFICATION OF CBDT F.NO. 286/105/2005-IT (INV.II) DT. 13.7.2006 WITHOU T PROVIDING A COPY OF THE SAME TO THE ASSESSEE AND WITHOUT ALLOWING HIM T O CONFRONT THE SAME. ALL THE GROUNDS OF APPEAL ARE INTER-CONNECTED, THER EFORE, THEY ARE BEING DISPOSED OFF TOGETHER BY WAY OF CONSOLIDATED ORDER, FOR THE SAKE OF CONVENIENCE. 2. BRIEFLY STATED THE FACTS ARE THAT THE CASE OF TH E ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT UNDER SECTIO N 143(3) OF THE IT ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VID E ORDER DATED 29.07.2011. WHILE FRAMING THE ASSESSMENT, THE AO MADE ADDITION ON ACC OUNT OF TRADING ADDITION, DISALLOWANCES ON ACCOUNT EXPENSES ETC. AND ASSESSE D THE TOTAL INCOME AT RS. 91,41,780/- AND CHARGED INTEREST THEREON UNDER SECT IONS 234B AND 234C OF THE ACT. BEING AGGRIEVED BY THE ORDER, ASSESSEE PREFERRED AP PEAL BEFORE LD. CIT (A), WHO DISMISSED THE APPEAL OF THE ASSESSEE. 3. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT CHARGING OF INTEREST IS ARBITRARY AND UNJUSTIFIED IN VIEW OF THE FACT THAT THE ASSESSEE HAD REQUESTED THE AO FOR ADJUSTING ADVANCE TAX OUT OF PD ACCOUNT AS PER PROVISIONS OF SECTION 132B(1) OF THE IT ACT. THE LD. COUNSEL SUBMITTED THAT THE ISSU E IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION ITAT JAIPUR BENCH FOR THE A.Y. 2006-07 & 07-08. 3 ITA NO. 773/JP/2014 SMT. MANORAMA MITTAL 4.1. ON THE CONTRARY, THE LD. D/R OPPOSED THE SUBMI SSIONS AND SUBMITTED THAT THE TRIBUNAL AND HONBLE DELHI HIGH COURT HAS NOT CONSI DERED THE BOARDS CIRCULAR ISSUED IN THIS RESPECT. 4.2. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE M ATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. THE CONTENTION OF THE ASSESSEE IN THE WRITTEN SUBMISSION ARE AS UNDER :- 1. IT IS SUBMITTED THAT THE LEARNED AO WAS DUTY BO UND TO GIVE CREDIT FOR ADVANCE TAX INSTALLMENTS PAID BY THE ASSESSEE B Y WRITING TWO LETTERS TO THE LEARNED AO FOR ADJUSTING ADVANCE TAX INSTALL MENTS OUT OF PD ACCOUNT OF THE ASSESSEE. 2. THE AMOUNT LYING IN THE PD ACCOUNT OF THE ASSESS EE IS NOTHING BUT HIS OWN MONEY AND AS PER PROVISIONS OF SECTION 132B (1) OF THE INCOME TAX ACT THE ASSESSEE IS FULLY ENTITLED FOR THIS ADJ USTMENT OUT OF HIS PD ACCOUNT. 3. IF THE LEARNED AO HAD ACTED ON THE REQUEST OF TH E ASSESSEE TO ADJUST THE INSTALLMENTS OF ADVANCE TAX OUT OF ASSESSEES O WN MONEY LYING IN PD ACCOUNT, THE ASSESSEE WOULD NOT BE CHARGED HUGE INTEREST U/S 234B AND 234C. 4. IN THE CASE OF THE ASSESSEE HIMSELF FOR ASSESSME NT YEARS 2006-07 AND 2007-08, THE HONBLE ITAT, JAIPUR BENCH, JAIPUR HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE AND HAS HELD AS UND ER :- THEREFORE, IN THE CIRCUMSTANCES AND FACTS OF THE C ASE, THE AO IS NOT JUSTIFIED IN NOT ADJUSTING THE ADVANCE TAX AND SELF ASSESSMENT TAX LIABILITY AGAINST THE PD ACCOUNT AS PRAYED BY THE A SSESSEE VIDE LETTER DT 14.6.05, 14.12.2005 AND 13.3.2006 AND SEPARATE LETT ER FOR SELF ASSESSMENT TAX ADJUSTMENT. THE AO IS DIRECTED TO AD JUST THE SAME AS REQUESTED BY THE ASSESSEE VIDE THE SAID LETTERS AND ACCORDINGLY CHARGE THE INTEREST IF ANY. 4 ITA NO. 773/JP/2014 SMT. MANORAMA MITTAL THEREFORE, AS PER DECISION GIVEN BY HONBLE ITAT IN OWN CASE OF THE ASSESSEE, THE ASSESSEE IS FULLY ENTITLED FOR THIS A DJUSTMENT OF ADVANCE TAX INSTALLMENT OUT OF PD ACCOUNT OF THE ASSESSEE. 5. OTHER DECIDED CASES ON THIS ISSUE IN FAVOUR OF T HE ASSESSEE IS AS UNDER :- CIT V/S. KESR KIMAM KARYALAY (2005) 196 CTR (DEL ) 611 CIT V/S. K.K. MARKETING (2005) 278 ITR 596 (DELH I) CIT V/S. ARUN KAPOOR (2011) 334 ITR 351 (P&H) HELD THAT SINCE THERE WAS NOTHING TO PROHIBIT THE ASSESSEE FROM MAKING SUCH A REQUEST, THE CASH AMOUNT OUGHT TO HAV E BEEN ADJUSTED AS PRAYED. SIMILAR VIEW HAS BEEN TAKEN BY THE FOLLOWING BENCHE S OF ITAT ON WHICH THE ASSESSEE PLACES HIS RELIANCE :- SATYA PRAKASH SHARMA V/S ACIT (2009) 20 DTR (DEL )(TRIB) 561 ACIT V/S. RAGHU NANDAN LAL & ORS. (2003) 79 TTJ (CHD) 192 KANISHKA PRINTS P LTD. (2013) 34 TAXMANN.COM 307 (AHD.) 6. THAT AN EXPLANATION 2 HAS BEEN INSERTED TO SEC. 132B BY FINANCE ACT, 2013 W.E.F. 1.6.2013 DECLARING THAT THE TERM EXISTING LIABILITY DOES NOT INCLUDE ADVANCE TAX PAYABLE IN ACCORDANCE WITH THE PROVISIONS OF PART C OF CHAPTER XVII. THIS AMENDMENT ITSELF MEANS THAT THERE WAS NO BAR S SUCH IN ADJUSTMENT OF ADVANCE TAX INSTALLMENT S OUT OF PD ACCOUNT OF THE ASSESSEE IN AY 2008-09. FURTHER HONBLE AHME DABAD ITAT HAS HELD THAT THIS AMENDMENT TO SEC. 132B IS TO BE APPL IED PROSPECTIVELY W.E.F. 1.6.13 (KANISHKA PRINTS P LTD. V. ACIT (2013 ) 34 TAXMANN.COM 307 (AHMEDABAD TRIB.) 7. LEARNED CIT (A) HAS RELIED HEAVILY ON CBDT CIRCU LAR F.NO. 286/105/2005-IT(INV.II) DT. 13.7.2006. IN THIS REGA RD, IT IS SUBMITTED THAT CIT (A) NEVER CONFRONTED THE ASSESSEE WITH THE DIRECTIONS GIVEN IN THE SAID CIRCULAR. THE LEARNED CIT (A) HAS REPRODUC ED THE RELEVANT PARA OF THE CIRCULAR IN APPEAL ORDER WHICH READS AS UNDE R :- THE MATTER WAS CONSIDERED BY THE BOARD AND THE BOA RD HAS DECIDED THAT NO CLARIFICATION IS REQUIRED BECAUSE P ROVISIONS OF 5 ITA NO. 773/JP/2014 SMT. MANORAMA MITTAL LAW DO NOT PERMIT APPLICATION OF SEIZED CASH AGAIN ST THE ADVANCE TAX LIABILITY OF THE ASSESSEE FOR THE YEAR IN WHICH SEARCH TOOK PLACE. THEREFORE, THE CIRCULAR IS ONLY PROHIBITING THE ADJ USTMENT OF SEIZED CASH OUT OF ADVANCE TAX INSTALMENTS ONLY FOR THE YEAR IN WHICH SEARCH TOOK PLACE AND NOT IN SUBSEQUENT YEARS. IN THIS CASE, SE ARCH ON THE ASSESSEE TOOK PLACE ON 19.06.2003 I.E. IN ASSESSMEN T YEAR 2004-05, THEREFORE, THE SAID CIRCULAR IS NOT APPLICABLE IN T HE YEAR UNDER APPEAL I.E. AY 2008-09. IN ANY CASE, DEPARTMENTAL CIRCULARS MAY BE BINDING ON THE AO BUT THEY ARE NOT BINDING ON THE ASSESSEE. 8. THE LEARNED AO HAS ERRED IN PASSING THE ORDER U/ S 154 HOLDING THAT ONLY A SUM OF RS. 10,00,979/- COULD BE ADJUSTED OUT OF PD ACCOUNT OF THE ASSESSEE AGAINST ORIGINALLY ADJUSTED AMOUNT OF RS. 17,55,640/-. IT IS SUBMITTED THAT THIS HAPPENED AS THE LEARNED AO F AILED TO PROPERLY APPROPRIATE THE AMOUNT OUT OF PD ACCOUNT OF THE ASS ESSEE. THIS HAS RESULTED IN MORE APPROPRIATION IN THOSE YEARS WHERE IT WAS NOT REQUIRED AND LESS APPROPRIATION WHERE IT WAS REQUIRED (PB PA GE NO. 16-20). IN ANY CASE, THE ABOVE AMOUNTS WERE ADJUSTED AS SELF A SSESSMENT TAX AND NOT AS ADVANCE TAX IN SPITE OF SPECIFIC REQUEST MADE BY THE ASSESSEE. LEARNED CIT (A) HAS ALSO FAILED TO APPREC IATE THESE FACTS. IT IS, THEREFORE, REQUESTED TO KINDLY ALLOW THE APP EAL OF THE ASSESSEE AND DELETE CHARGING OF HUGE INTEREST U/S 2 34B AND SECTION 234C OF INCOME TAX ACT. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE SUBMI SSIONS OF THE ASSESSEE. THE YEAR UNDER APPEAL IS ASSESSMENT YEAR 2008-09. THE L D. COUNSEL FOR THE ASSESSEE HAS DRAWN OUR ATTENTION TO PAGES 7 & 8 OF THE PAPER BOO K STATING THEREIN THAT A SUM OF RS. 7.50 LAKHS MAY BE ADJUSTED OUT OF PD ACCOUNT OF THE ASSESSEE TOWARDS ADVANCE TAX INSTALLMENT DUE ON 15.9.2007. THE ASSESSEE FUR THER SUBMITTED THAT VIDE LETTER 6 ITA NO. 773/JP/2014 SMT. MANORAMA MITTAL 12 TH DECEMBER, 2007 HAS MADE SIMILAR REQUEST IN ASSESSE ES OWN CASE PERTAINING TO ASSESSMENT YEAR 2008-09. THE COORDINATE BENCH JAIP UR HAS DECIDED THE ISSUE IN ITA NO. 778 & 779 /JP/2009 IN THE CASE OF SHRI ANAN D SHANKAR MITTAL BY OBSERVING AS UNDER :- 9. AS REGARDS THE ADDITIONAL GROUND RAISED BY THE A SSESSEE I.E. GROUND NO.3 RAISED, THE FACTS AS STATED ARE MENTIONED HEREINBEFORE THAT A S EARCH WAS CONDUCTED ON THE ASSESSEE ON 19.06.2003 AND A CASH OF RS.32,00,000/- WAS SEIZED AND INDRA VIKAS PATRA OF RS.1,29,00,000/- WERE SEIZED. THE SAID INDRA VIKAS PATRA AFTER ENCA SHMENT WERE TRANSFERRED BY THE DEPARTMENT IN THE PD ACCOUNT AND IN SUCH A PROCESS THE TOTAL MONEY LYING OF THE ASSESSEE IN PD ACCOUNT WAS RS.1,61,00,000/-. THE VARIOUS LETTE RS ON DUE DATE OF ADVANCE TAX FOR THE ASSESSMENT YEAR 2006-07, DATED 14.09.2005, 14.12.20 05 AND 13.03.2006 WERE WRITTEN TO THE AO FOR ADJUSTING RS.15,00,000/-, RS.15,00,000/- AND RS.12,00,000/- RESPECTIVELY TOTALING TO RS.42,00,000/-. THE SAID LETTERS ARE ON RECORD AT PAPER BOOK PAGES 8,9 AND 10. THE AO INSPITE OF SPECIFIC REQUEST DID NOT ADJUST THE AMOU NT LYING IN PD ACCOUNT TOWARDS ADVANCE TAX LIABILITY AND THE SELF ASSESSMENT TAX LIABILITY FOR WHICH A SEPARATE REQUEST WAS ALSO MADE. THE ASSESSMENT WAS COMPLETED U/S 143(1) . THE ASSE SSEE RECEIVED AN ORDER U/S 154 WITH INTEREST U/S 234-B AND 234-C WITH A TOTAL DEMAND OF RS.51,32,160/- WITHOUT GIVING THE CREDIT FOR THE ADVANCE TAX. THE APPLICATION U/S 154 DATED 29.03.2007 WAS ALSO FILED WHICH REMAINED UNDISPOSED. ULTIMATELY THE TAX WERE ADJUS TED ON 29.12.2008 ON PASSING THE ORDER U/S 143(3) BUT INTEREST WAS ALSO CHARGED U/S 234-B AND 234-C AMOUNTING TO RS.6,55,618/- AND RS.1,69,916/- RESPECTIVELY. NOW THE ISSUE ARIS ES THE AMOUNT LYING IN THE PD ACCOUNT WHICH BELONGED TO THE ASSESSEE TO BE ADJUSTED AGAIN ST THE LIABILITIES FOR TAXES CAN BE ADJUSTED ON THE REQUESTS IN PARTICULAR WHEN SPECIFI C REQUESTS MADE AT EACH TIME THE ADVANCE TAX IS DUE. IN THIS REGARD RELIANCE HAD BEEN PLACE D ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS K.K. MARKETING (2005) 2 78 ITR 596 HEAD NOTES OF WHICH FOR CLARITY ARE REPRODUCED HEREUNDER: A SEARCH WAS CARRIED OUT IN THE PREMISES OF THE AS SESSEE IN AUGUST, 1993. DURING THE SEARCH A LARGE AMOUNT OF CASH WAS RECOVE RED AND SO, WHEN PAYMENT OF ADVANCE TAX WAS BECOMING DUE IN SEPTEMBER 1993, THE ASSESSEE WROTE TO THE DEPARTMENT THAT THE CASH SEIZED MAY BE ADJUSTED TOWARDS ADVANCE TAX. 7 ITA NO. 773/JP/2014 SMT. MANORAMA MITTAL THIS REQUEST WAS REITERATED IN DECEMBER, 1993. WHI LE PASSING THE ASSESSMENT ORDERS UNDER SECTION 143(1)(A) OF THE INCOME-TAX AC T, 1961 IT WAS HELD THAT THE ASSESSEE WERE ENTITLED TO A REFUND OF RS.48M78,295/ - AS AGAINST THE ADVANCE TAX LIABILITY OF RS.48,55,000/-. THE ASSESSING OFF ICER CHARGED INTEREST FROM BOTH THE ASSESSEE UNDER SECTION 234B AND 234C. THE TRIBUNAL DELETED THE INTEREST. ON APPEAL TO THE HIGH COURT. HELD, THAT THERE WAS NO DISPUTE THAT THE OFFER FIR ADJUSTMENT OF THE SEIZED CASH WAS MADE BY THE ASSESSEE BEFORE THE ADVANCE TAX LIABILI TY BECAME4 DUE. IN SO FAR AS THE ADJUSTMENT OF THE CASH SEIZED AGAINST THE LIABILIT Y OF THE FIRM IS CONCERNED, THE TRIBUNAL RIGHTLY HELD THAT THERE IS NO DIFFERENCE B ETWEEN A FIRM AND ITS PARTNERS. THE PARTNERS CONSTITUTE THE FIRM AND THEY ARE LIABL E TO MAKE GOOD ANY DEMAND OF TAXES ON BEHALF OF THE FIRM. THE PARTNERS OF THE C ONCERNED ASSESSEE HAD CATEGORICALLY PRAYED THAT THE CASH SEIZED FROM THEI R PREMISES, WHICH ALSO HAPPENED TO BE THE PREMISES OF THE FIRM, SHOULD BE ADJUSTED AGAINST THE ADVANCE TAX LIABILITY OF THE FIRM/ASSESSEE. SUCH A REQUEST COULD HAVE BEEN MADE BY THE PARTNERS TO BIND THE ASSESSEE AND THERE COULD NOT HAVE BEEN ANY GRO UND FOR REJECTING SUCH A REQUEST. THE REVENUE ACCEPTED THE RETURN FILED BY THE ASSES SEE AND IN FACT IT WAS FOUND THAT THEY WERE ENTITLED TO A REFUND, WHICH WAS MORE THA N THE AMOUNT OF CASH THAT WAS SEIZED. THE TRIBUNAL ALSO NOTED THAT SINCE THE QU ESTION OF CHARGING INTEREST UNDER SECTION 234B AND 234C OF THE ACT WAS HIGHLY DEBATAB LE, IT WOULD BE APPROPRIATE NOT TO CHARGE INTEREST FROM THE ASSESSEES. THE TRIBUNA L WAS RIGHT AND NO SUBSTANTIAL QUESTION OF LAW AROSE FROM THE ORDER. 10. IN VIEW OF THE DECISION IN THE CASE OF K.K. MAR KETING (SUPRA) AND OTHER DECISIONS RELIED UPON BY MR. ANIL GOYAL HEREINBEFORE , WE ARE OF THE VIEW THAT THE AO WAS REQUIRED TO ADJUST THE PD ACCOUNT AGAINST THE ADVANCE TAX AND S ELF ASSESSMENT TAX LIABILITY. THEREFORE IN THE CIRCUMSTANCES AND FACTS OF THE CASE, THE AO I S NOT JUSTIFIED IN NOT ADJUSTING THE ADVANCE TAX AND SELF ASSESSMENT TAX LIABILITY AGAINST THE P D ACCOUNT AS PRAYED BY THE ASSESSEE VIDE LETTER DATED 14.09.2005, 14.12.2005 AND 13.03.2006 AND SEPARATE LETTER FOR SELF ASSESSMENT TAX ADJUSTMENT . THE AO IS DIRECTED TO ADJUST THE SAME AS REQUESTED BY THE ASSESSEE VIDE THE SAID LETTERS AND ACCORDINGLY CHARGE THE INTERES T IF ANY. THUS GROUND NO.2 AND 3 AND ADDITIONAL GROUND RAISED BY THE ASSESSEE ARE ALLOWE D. 8 ITA NO. 773/JP/2014 SMT. MANORAMA MITTAL THE FACTS ARE IDENTICAL IN THIS YEAR ALSO. THERE IS NO CHANGE IN THE FACTS. THE ONLY CONTENTION OF THE LD. D/R IS THAT THE TRIBUNAL HAS NOT CONSIDERED CBDT CIRCULAR NO. 286/105/2005 DATED 13 TH JULY, 2007. WE FIND MERIT IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT CIRCULAR OF CBDT WOUL D APPLY IN RESPECT OF ADVANCE TAX LIABILITY OF THE ASSESSEE FOR THE YEAR IN WHICH SEA RCH TOOK PLACE. SINCE THE ASSESSMENT YEAR IS SUBSEQUENT TO THE YEAR UNDER SEA RCH, IN OUR CONSIDERED VIEW THIS CIRCULAR WOULD NOT BE APPLICABLE FOR THE SIMPLE REA SON THAT WHEN ADVANCE TAX LIABILITY ACCRUED, THE AMOUNT MAY NOT BE AVAILABLE WITH THE D EPARTMENT IN THE YEAR IN WHICH THE SEARCH TOOK PLACE. BUT IN THE SUBSEQUENT YEARS THE AMOUNT REMAINS WITH THE DEPARTMENT AND ON APPLICATION SAME CAN BE ADJUSTED AGAINST THE ADVANCE TAX LIABILITY SUBJECT TO THE SATISFACTION OF THE AO THA T THE AMOUNT IS AVAILABLE WITH THE DEPARTMENT IN PD ACCOUNT MORE THAN THE LIABILITY RE LATED TO THE YEAR IN WHICH SEARCHS TOOK PLACE. THEREFORE, IN OUR CONSIDERED VIEW, THE LD. CIT (A) WAS NOT JUSTIFIED IN TAKING A CONTRARY VIEW AS HELD BY THE COORDINATE BE NCH. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH IN I TA NO. 778 & 779/JP/2009, WE HEREBY DIRECT THE AO TO DELETE THE ADDITION. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER IS PRONOUNCED IN THE OPEN COURT ON 31.08.2016 . SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 31/08/2016. DAS/ 9 ITA NO. 773/JP/2014 SMT. MANORAMA MITTAL VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SMT. MANORAMA MITTAL, JAIPUR. 2. THE RESPONDENT THE DCIT, CENTRAL CIRCLE-2, JAI PUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 773/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR