JAYANT B PATEL, V. ASST CIT CEN CIR 13,

MA 117/MUM/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5627 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-05-2017
• Appeal Filed By: Assessee
• Bench Allotted: J
• Assessment Year: 2001-2002
• Appeal Filed On: 09-03-2017
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN
• Assessee Lawyers: V CHANDRASHEKHARHARSHAD SHAH
• Keywords: Document seized; Documents seized
• Section: 153A; 234B

Judgement Text

, , J , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J , MUMBAI BEFORE SHRI R .C. SHARMA , ACCOUNTANT MEMBER, AND SHRI R AM LAL NEGI , JUDICIAL MEMBER MA 117 - 123/MUM/2017 (ARISING OUT OF ITA NO. 554 7 - 5553 /MUM/201 2 ) ASSESSMENT YEAR: 20 0 1 - 02,2003 - 04, 2004 - 05, 2006 - 07, 2007 - 08 SHRI JAYANT B. PATEL B/27, CLIFTON SOCIETY, NEAR CENTAUR HOTEL, JUHU, VILE PARLE (W), / VS. ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 13, AAYAKARBHAVAN, MAHARISHI KARVE ROAD, MUMBAI 400 020. ( APPELLANT ) (RESPONDENT ) PAN AACPP 6414H APPELLANT BY MR. V. CHANDRASHEKHAR/HARSHAD SHAH RESPONDENT BY MR. M.C. OMI NINGSHEN / DATE OF HEARING: 21/04/2017 /DATE OF ORDER: 03 /05/2017 / O R D E R PER R.C. SHARMA , A.M: THESE MA AROUSE OUT OF ORDER PASSED BY TRIBUNAL DATED 10/08/2016 IN ITA NO. 5549 - 5553/MUM/2017 . 2. THROUGH TH ESE MA IT WAS ARGUED BY THE LD. AR IN ALL THE YEARS UNDER CONSIDERATION COMMON ISSUE WITH REGARD TO RECALCULATING INTEREST U/S. 234 - A WAS NOT ADJUDICATED WHICH IS BEING BROUGHT TO THE NOTICE OF THE HONBLE INCOME - TAX APPELLATE TRIBUNAL, MUMBAI J BENCH, FOR RECTIFICATION . 2 MA NO. 117 - 123/MUM/2017 SHRI JAYANT PATEL 3. IT WAS FURTH ER CONTENDED BY THE LD. AR THAT THE HONBLE ITAT ON A SIMILAR GROUND FOR COMPUTI NG INTEREST U/S 234A IN CASE OF APPELLANTS FAMILY MEMBER MR. PUNIT JAYANT PATEL IN ITS ORDER FOR ITA NO. 5544/M/2012 (AY 2003 - 04) DATED 21/01/2015 AT PARA 18.1 HAD ADJUDICATED THAT: WE HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WITH REGARD TO CHARGING OF INTEREST U/S. 234A OF THE ACT, THE CONTENTION OF LD. AR WAS THAT THERE WAS DELAY OF 10 MONTHS IN FILING RETURN WHICH WAS BECAU SE OF DELAY IN RECEIPT OF SEIZED MATERIALS FROM THE DEPARTMENT. WE FOUND THAT THERE WAS A DELAY IN SUPPLYING SEIZED MATERIALS WHICH IS ATTRIBUTABLE TO THE DEPARTMENT, THEREFORE, NO INTEREST IS TO BE CHARGED FOR SUCH PERIOD WHICH IS ATTRIBUTABLE TO THE DEP ARTMENT. ACCORDINGLY, THE AO IS DIRECTED TO VERIFY AND NOT CHARGE INTEREST FOR SUCH DELAY. 4. WE HAVE CONSIDERED THE RIVAL CONTENTION S AND GONE THROUGH THE ORDER OF THE TRIBUNAL AS WELL AS ORDER PASSED BY THE TRIBUNAL IN CASE OF PUNIT J. PATEL. RESPECT FULLY FOLLOWING THE ORDER OF COORDINATE BENCH IN THE CASE OF OTHER FAMILY MEMBER MR. PUNIT PATEL DATED 21/02/2015 WE DIRECT THE AO TO VERIFY AND FOUND THE DELAY ATTRIBUTABLE TO DEPARTMENT IN SUPPLYING COPIES OF SEIZED DOCUMENTS WHICH RESULTED IN DELAY IN FILING RETURN BY THE ASSESSEE. TO THE EXTENT DELAY IS ATTRIBUTABLE TO DEPARTMENT , AO IS DIRECTED NOT TO CHARGE INTEREST U/S. 234A. WE DIRECT ACCORDINGLY. MA 118/MUM/2017 (IN ITA NO. 5550/MUM/2012 ) 5. IT WAS POINTED OUT BY LD. AR THAT GROUND NO. 5 WITH REGARD TO ADDITION OF RS. 5 ,6 8,942 / - ON ACCOUNT OF SALE OF GOLD JEWELLERY, 3 MA NO. 117 - 123/MUM/2017 SHRI JAYANT PATEL WAS NOT ADJUDICATED. SINCE IT IS THE MISTAKE APPARENT FROM THE RECORD, WE RECALL OUR ORDER TO A LIMITED EXTENT OF DECIDING THIS GROUND NO. 5. REGISTRY IS DIRECTED ACCORDINGLY . MA 1 21 /MUM/2017 (IN ITA NO. 55 47 /MUM/2012) 6. IT WAS POINTED BY LD. AR THAT DEPARTMENT SHOULD BE DIRECTED TO REWORK OF INTEREST CHARGED U/S. 234B, IN SO FAR AS CREDIT FOR RS. 80,00,000/ - BEING CASH SEIZED DURING THE SEARCH ON 10/01/2007 AND FOR RS. 100,000/ - FOUND / TAKEN ON 27/02/2007 & SEIZED ON 07/03/2007 SHOULD HAVE BEEN GIVEN FROM THE DATE APPELLANT & FAMILYS REQUEST APPLICATION FOR ADJUSTMENT WITH SELF - ASSESSMENT TAX DUES AND THEN AGAINST THE TAX DEMANDS RAISED AS PER ASSESSMENT ORDERS. 7. WE HAVE CONSIDER ED RIVAL CONTENTION AND RESTORE THE MATTER BACK TO THE FILE OF AO FOR RECALCULATING INTEREST U/S. 234B AFTER VERIFYING IF THERE IS ANY REQUEST LETTER FROM THE ASSESSEE FOR ADJUSTING THE CASH SEIZED DURING THE COURSE OF SEARCH AGAINST THE TAX DEMAND. IF THE AO FOUND SUCH LETTER IN HIS RECORD FROM ASSESSEE SSIDE, HE SHOULD REWORK THE INTEREST U/S. 234B GIVING DUE CREDIT FOR SUCH CASH SEIZED, WE DIRECT ACCORDINGLY. MA 1 23 /MUM/2017 (IN ITA NO. 555 3 /MUM/2012) 8. IT WAS CONTENDED BY LD. AR THAT ASSESSEE HAS FILE ADDITIONAL GROUND FOR NOT GRANTING INTEREST U/S. 132B OF THE ACT ON THE CASH SEIZED . IT WAS CONTENDED BY LD. AR THAT INTEREST SHOULD BE GRANTED U/S. 132B OF THE ACT ON THE CASH SEIZED FROM THE DATE ON WHICH CASH WAS SEIZED. OUR ATTENTION WAS ALSO INVITED TO THE APPELLANTS REQUEST LETTER DATED 31/10/2007 FILED ON 13/11/2007, TO ADJUST RS. 584,755/ - FOR AY 2007 - 08 AS ADVANCE TAX PAID ON 10/01/2007 , THEN APPELLANT & FAMILYS REQUEST LETTER DATED 4 MA NO. 117 - 123/MUM/2017 SHRI JAYANT PATEL 05/05/2008 FILED ON 17/06/2008 TO ADJUST WITH SA TAXES DUES AS PER THE RETURNS FILED PURSUANT TO NOTICE U/S. 153A FOR VARIOUS YEARS ON 19/05/2008 . 9. WE HAVE CONSIDERED RIVAL CONTENTIONS, THE FACTS WITH REGARD TO SEIZ ER OF CASH AND THE CALCULATION OF INTEREST U/S. 132B ARE NOT CLEAR FROM RECORD. THEREFORE, IN THE INTEREST OF JUSTICE WE RESTORE THIS GROUND ALSO BACK TO THE FILE OF AO FOR RE WORKING OUR INTEREST U/S. 132B AS PER LAW AFTER VERIFIC ATION OF AMOUNT SEIZED . WE DIRECT ACCORDINGLY. 10. IN THE RESULT ALL MA S FILE D BY THE ASSESSEE ARE ALLOWED IN PART IN TERMS INDICATED HEREIN ABOVE. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 3 RD MAY 2017. SD/ - (R.L. NEGI) SD/ - ( R.C. SHARMA ) / JUDICIALMEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 03 /0 5 /2017 RAHUL DHOKE , P.S . / . . / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A) - , MUMBAI 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, / DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI