MS LUCKY COKE INDUSTRIES THROUGH ITS PARTNER SRI PRAKASH KUMAR AGARWAL V. Union Of India Through The Commissioner Of Income Tax Central And Ors

WPC/1889/2013

AI Insights

The case involves M/s Lucky Coke Industries, the petitioner, who sought a direction from the High Court of Jharkhand to the Assistant Commissioner of Income Tax, Central Circle-1, Dhanbad, to credit an amount of Rs.27,00,000 seized during a search operation on 28.02.2009 as advance tax from the date of seizure. The petitioner argued that the seized amount should be adjusted against the tax liability as per various judgments and provisions of the Income Tax Act, 1961. The respondent, represented by the Revenue, contended that the seized amount should be treated as per Section 132B(4)(a) of the Act, which does not include advance tax. The court did not delve into the merits of the arguments but directed the respondent to consider the petitioner's application and pass an appropriate order after a hearing.

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 748792 (HC-JHARKHAND)
• Appeal Type: Others
• Pronouncement Date: 23-07-2014
• Assessment Year: misc
• Other Referred Cases: Mahesh Choudhary's case (Tax Case No. 11 of 2001 dated 02.11.2012), Sandvik Asia Ltd. vs. Commissioner of Income Tax, Commissioner of Income Tax vs. Pandurang Dayaram Talmale, Commissioner of Income Tax vs. K.K.Marketing, Satpal D. Agarwal HUF vs. ACIT, Vipul D.Doshi vs. ACIT
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: DEEPAK ROSHAN
• Assessee Lawyers: BINOD PODDAR; VIKASH PANDEY; DARSHANA MISHRA; PIYUSH PODDAR; AMRITA SINHA
• Keywords: Advance tax; Assessment; Income Tax; Reassessment; Search and seizure
• Section: 142(1); 234B; 234A; 234C; 132(1); 132B(4)(a)

Judgement Text

" IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(T) No. 1889 of 2013 M/s Lucky Coke Industries … Petitioner Vs. Union of India and Ors. … Respondents ---- CORAM : HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE AMITAV K. GUPTA ---- For the Petitioner : Mr. Binod Poddar, Sr. Advocate : Mr. Vikash Pandey, Advocate : Ms. Darshana Poddar Mishra, Advocate : Mr. Piyush Poddar, Advocate : Ms. Amrita Sinha, Advocate. For the respondents : Mr. Deepak Roshan, Advocate. ….. Order No.09 Dated 23rd July, 2014 This writ petition has been filed by the petitioner seeking for a direction upon the Assistant Commissioner of Income Tax, Central Circle-1, Dhanbad – Assessing Officer to give credit of the amount of Rs.27,00,000/- with effect from 28.02.2009 i.e. the date of its seizure from the petitioner under Section 132(1) of the Income Tax Act, 1961 for the purpose of calculating the amount of interest under Sections 234A, 234B and 234C of the Act in the order dated 30.03.2012 passed by the Assessing Officer keeping in view the judgment of Division Bench of this Court in Mahesh Choudhary’s case (Tax Case No. 11 of 2001 dated 02.11.2012) and other judgments of the Hon’ble Supreme Court. 2. Brief facts are that a search and seizure operation was conducted in the business and residential premises of the petitioner on 28.02.2009. During the course of search, cash amounting to Rs.27,00,000/- was seized. Subsequently, a notice under Section 142(1) dated 14.12.2009 was issued and the assesse filed return of the income related to the assessment year 2009-10 on 30.07.2010 disclosing the total income of Rs.3,05,73,504/- including the additional income of Rs.2,79,50,000/-. The Assessing Officer determined the total income as Rs.7,74,44,806/- as against the return income of the assesse of Rs.3,05,73,504/-. Being aggrieved, the assesse had filed appeal before the CIT (Appeals), Dhanbad and vide order dated 28.09.2011, the same was partly allowed. Still aggrieved, the assesse preferred appeal before Income Tax Appellate Tribunal, Circuit Bench, Ranchi and the ITAT vide order dated 24.02.2012 allowed the appeal in part. As against the order of the ITAT, Revenue is said to have preferred appeal before this Court in Tax Case Appeal No. 25 of 2012 and the same has been admitted and pending. 3. After the appeal was partly allowed by the ITAT, the assesse has sent letter on 06.12.2012 and again on 08.01.2013 requesting the Department to treat the amount of Rs.27,00,000/- seized during the course of search as advance tax from the date of seizure itself. Since no order has been passed on the said application dated 06.12.2012 and also the letter dated 08.01.2013, the assesse has preferred this writ petition. 4. The learned Senior Counsel, Mr. B. Poddar, appearing for the petitioner has submitted that the provisions of the Act and the various judgments of the Hon’ble Supreme Court and also the judgment in Mahesh Choudhary’s case (Tax Case No. 11 of 2001 dated 02.11.2012) clearly stipulate that retained amount required to be given adjustment against the then liability of the assesse, which has been quantified subsequently by the order of assessment/reassessment and if any excess amount is retained by the Revenue Department, interest shall also be paid on it to the assesse. It is therefore submitted that the seized amount of Rs.27,00,000/- was with the respondent Department and the same was adjusted against the tax payable by the petitioner on 30.03.2011 after the assessment was completed and the same ought to have been taken as advance tax with effect from the date of seizure i.e. 28.02.2009. In this regard, the learned Senior Counsel has placed reliance upon Mahesh Choudhary’s case (Tax Case No. 11 of 2001 dated 02.11.2012) and also the judgments reported in [2006] 280 ITR 643 (SC) (Sandvik Asia Ltd. vs. Commissioner of Income Tax), [2004] 135 TAXMAN 193 (BOM.) ( Commissioner of Income Tax vs. Pandurang Dayaram Talmale), [2005] 278 ITR 596 (Delhi) (Commissioner of Income Tax vs. K.K.Marketing), [1998] 62 TTJ (Mumbai) 98 (Satpal D. Agarwal HUF vs. ACIT) and [2001] 118 Taxman 30 (Mum-ITAT) (Vipul D.Doshi vs. ACIT) and also the Board’s Circular No.14(XL-35) dated 11.04.1955. 5. We have heard the learned counsel Mr. Deepak Roshan appearing for the respondent-Revenue. 6. The learned counsel appearing for the Revenue submitted that explanation 2 to Section 132B(4)(a) of the Act clearly states that “for the removal of doubts, …. that “existing liability” does not include advance tax payable in accordance with the provisions of Part-C of Chapter-XVII” and therefore the amount of Rs.27,00,000/- seized, has to be calculated as per Section 132B(4)(a) of the Act and the same cannot be taken as advance tax from the date of seizure of the said amount. 7. Without going into the merits of the rival contentions, we direct the 3rd respondent to consider the application of the petitioner dated 06.12.2012 and subsequent letter dated 08.01.2013 in accordance with the provisions of the Income Tax Act and the above judgments and also the judgment delivered by this Court in Mahesh Choudhary’s case (Tax Case No. 11 of 2001 dated 02.11.2012). We also direct the petitioner to appear before the 3rd respondent within two weeks from the date of receipt of copy of the order and the 3rd respondent shall pass orders after affording opportunity of hearing to the petitioner-assessee in accordance with law within a period of four weeks thereafter. The writ petition is disposed of with the above directions. (R. Banumathi, C.J.) (Amitav K. Gupta, J.) Birendra/Brajesh "