Shri Binod Kumar Jain, Kolkata V. ACIT, Circle-44, Kolkata, Kolkata

ITSSA 32/KOL/2009

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7609 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-03-2012
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 22-09-2009
• Court: TRIBUNAL
• Department Lawyers: ASSESSING OFFICER TILL
• Keywords: Revision of order
• Section: 244A

Judgement Text

, C , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- C CALCUTTA () BEFOR E , SHRI N. VIJAYA KUMARAN, JUDICIAL MEMBER. /AND .'#., $% SHRI C.D.RAO, ACCOUNTANT MEMBER IT (SS) A NO. 32/KOL/2009 A.Y : BLOCK PERIOD 01.4.86 TO 1.1.97 SHRI BINOD KUMAR JAIN PAN : ACTPJ 7592D A.C.I.T, CIR.44, KOLKATA (&' / APPELLANT ) - - VERSUS -. ()*&'/ RESPONDENT ) (&' /APPELLANT / SHRI B.C. JAIN, LD.AR ()*&' / RESPONDENT: / SHRI D.ROY, LD.DR , - #% /DATE OF HEARING : 26-03-2012 ./ - #% /DATE OF PRONOUNCEMENT: 30-03-2012 $0 / ORDER , , , , , , ,, , SHRI N. VIJAYA KUMARAN, JUDICIAL MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XXX, KOLKATA DATED 11-05-20 09 THE ASSESSMENT YEAR/BLOCK PERIOD INVOLVED IS 01-04-86 TO 01-01-97. 2. THE CLAIM OF THE ASSESSEE IS THAT THE ASSESSING OFFICER HAS WRONGLY GRANTED LESSER INTEREST TO THE ASSESSEE AT 8%S, WHEREAS ACCORDING TO THE ASSESSEE, HE IS ENTITLED TO 15%. FURTHER, AS PER SECTION 244A INTEREST WAS NOT ALLOWED BY THE ASSESSING OFFICER TILL THE DATE OF GRANTING REFUND. .3 THE FACTS RELEVANT ARE THAT A SEARCH WAS CONDUCT ED IN THE ASSESSEES CASE. IN VIEW OF SEARCH ACTION, CASH WAS SEIZED IN THE COURSE OF SEA RCH. SUBSEQUENTLY, SEIZED CASH WAS ADJUSTED AGAINST THE DEMAND RAISED. U/S 264 THE APPEAL BY TH E ASSESSEE THE DEMAND WAS REDUCED. RESULTANTLY SEIZED CASH ADJUSTED AGAINST THE DEMAND RESULTED IN REFUND.. THE REFUND WAS GRANTED IT(SS) A NO.32/KOL/09-C-NVK 2 TO THE ASSESSEE. LATER INTEREST @8% IS GRANTED TO THE ASSESSEE U/S. 132B(4). AT THIS STAGE ASSESSEE CONTENDS THAT THE INTEREST IS TO BE GRANTE D AT 15%. THIS IS THE DISPUTE. 4. WE HAVE HEARD THE LEARNED COUNSEL FOR THE ASSES SEE AND THE LEARNED DR AT LENGTH AND HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) CORRECTLY HELD THAT PROVISIONS OF SECTION 244A. AR E APPLICABLE TO THE REFUND ARISING OUT OF TAX PAID IN RESPONSE TO DEMAND NOTICE ISSUED U/S. 156. THE LEARNED COUNSEL FOR THE ASSESSEE, THEREFORE, MADE HIS STATEMENT AT BAR THAT ASSESSEE NEVER REQUESTED THE DEPARTMENT TO ADJUST SO- SEIZED CASH TOWARDS THE TAX DUE. WHEN THAT BEING TH E POSITION, THE PROVISIONS OF SECTION 244A ARE NOT APPLICABLE TO THE REFUND. HENCE, WE SEE NO JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IN CON FIRMING THE SAME. BY WAY OF SAME FINDING THE ASSESSEE CLAIMED INTEREST ON INTEREST A LSO, WE FIND THAT ASSESSEE IS ALSO NOT ENTITLED THAT IT IS A REFUND, WHICH IS NOT ARISING OUT OF TA X PAID, BUT THE REFUND AROSE TO THE ASSESSEE OUT OF THE CASH SEIZED IN COURSE OF SEARCH U/S.132 AND AT THE COST OF REPETITION NO AMOUNT OF TAX WAS PAID IN RESPONSE TO DEMAND NOTICE ISSUED U/S.156 O F THE ACT. HENCE, ASSESSEE IS NOT ENTITLED TO ANY RELIEF AS CLAIMED IN HIS GROUNDS OF APPEAL AND THE DECISION AS RELIED ON BY THE ASSESSEE IN THE CASE OF CIT VS. ISLAMIC ACADEMY EDUCATION REPOR TED IN (2011) 239 CTR 209(KAR). THE CASE IS QUITE DISTINGUISHABLE AS IN THE CITED CASE THAT TAX PAYABLE WAS ADJUSTED ONLY AT THE REQUEST OF THE ASSESSEE FROM THE AMOUNT SEIZED. THE DECISION AS RELIED ON BY THE LEARNED COUNSEL FOR THE ASSESSEE IN THE CASE OF SANDVIK ASIA LTD VS . CIT [2006] 280 ITR 643(SC)S IS ALSO ON THE SAME RATIO. HENCE, IT IS QUITE DISTINGUISHABLE AND NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. THE GROUNDS RAISED BY THE ASSESSEE ARE DISMI SSED. 5. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. 1 $0 %$ 2 3 14 THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 30 .-03-2012 SD/- SD/- ( .'#., $% ) , ,, , ( C.D.RAO, ACCOUNTANT MEMBER) ( , ) ( N.VIJAYA KUMARAN, JUDICIAL MEMBER ) DATED: 30.-03-2012 IT(SS) A NO.32/KOL/09-C-NVK 3 *PP SR.PS/ $0 - )55 6$// COPY OF THE ORDER FORWARDED TO: 1. &' /APPELLANT- SHRI BINOD KUMAR JAIN 37/1 SHBTOLLA ST ., KOL-7. 2 )*&' / RESPONDENT : A.C.I.T,CIR-44, 40 STRAND ROAD, KOLK ATA-1. 3. 50 /CIT 4. 50 ()/ CIT(A), 5. <53 )5/ DR, KOLKATA BENCHES, KOLKATA [* )5/ TRUE COPY] $0/ BY ORDER ASSTT. REGISTRAR