ACIT, Central Circle - 1(1), , Kolkata V. Shri Rakesh Agawal, Kolkata

MA 194/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5605 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 10-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOUDHUR Y
• Keywords: Search and seizure; Principle of natural justice
• Section: 234B; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI A.T. VARKEY, JM &DR. A.L.SAINI, AM M.A. NO.194/KOL/2018 (ARISING OUT OF ./ITA NO.76/KOL/2017 ( / ASSESSMENT YEARS: 2012-13) ACIT, CC-1(1), KOLKATA VS. SHRI RAKESH AGARWAL 5/2/V, PANDITIYA ROAD, 110, SHANTIPALLY, 3 RD FLOOR, KOLKATA- 700107. ./ ./PAN/GIR NO.: ACZPA 0446 K (ASSESSEE) .. (REVENUE) ASSESSEE BY : SHRI ROBIN CHOUDHURY, ADDL. CIT SR. DR RESPONDENT BY : NONE / DATE OF HEARING : 15/03/2019 /DATE OF PRONOUNCEMENT : 24/05/2019 / O R D E R PER DR. A. L. SAINI: THIS IS A MISCELLANEOUS APPLICATION FILED BY THE R EVENUE PRAYING TO RECALL THE ORDER OF THE TRIBUNAL DATED 30/05/2018. 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F THE ASSESSEE IN SPITE OF ISSUANCE OF NOTICE FOR HEARING MORE THAN ONE OCCAS ION AND LD. DR WAS PRESENT FOR THE APPELLANT REVENUE. IN THE ABSENCE OF ANY APPEAR ANCE BY ASSESSEE , THIS M.A. IS BEING DISPOSED OFF EX-PARTE QUA THE ASSESSEE, AFTE R HEARING LD. DR FOR REVENUE. SHRI RAKESH AGARWAL MA NO. 194/KOL/2018 (ARISING OUT OF I.T.A. NO. 76/KOL/2017) ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 2 22 2 3. THE CASE OF THE REVENUE IN THIS MISCELLANEOUS A PPLICATION ARE EXPLAINED IN PARA 2 OF THE MISCELLANEOUS APPLICATION, WHICH IS B EING REPRODUCED BELOW FOR READY REFERENCE: IT IS HUMBLY SUBMITTED THAT IN THE INSTANT CASE, H ONBLE BENCH HAS OVERLOOKED THE FACT THAT THE SEARCH & SEIZURE IN THIS CASE TOO K PLACE ON 17.01.2012 AND CASH RS. 1,83,45,000/- WAS SEIZED HOWEVER THE ASSESSEE FILED REQUEST LETTER BEFORE THE LD. DGIT ONLY ON 10.04.2012, REQUESTING TO ADJUST T HE SEIZED CASH AGAINST ADVANCE TAX LIABILITY FOR THE ASSESSMENT YEAR 2012- 13 I.E. AFTER THE EXPIRY OF THE FINANCIAL YEAR 2011-12. THUS, THE LIABILITY OF THE ASSESSEE TOWARDS ADVANCE TAX FOR ASSESSMENT YEAR 2012-13 WAS NOT FULFILLED DURING TH E FINANCIAL YEAR 2011-12 ITSELF, AS REQUIRED UNDER THE LAW, AND THUS RESULTING IN SH ORTFALL OF PAYMENT OF ADVANCE TAX TILL 10.04.2012. MOREOVER, ADVANCE TAX FOR ASSE SSMENT YEAR 2012-13 IS PAYABLE DURING THE COURSE OF THE FINANCIAL YEAR 201 1-12 ON QUARTERLY BASIS AND HENCE, THERE WAS ALSO DEFERMENT OF PAYMENT OF ADVAN CE TAX. SINCE THE REQUEST LETTER WAS FURNISHED AFTER EXPIRY OF THE RELEVANT F INANCIAL YEAR, THE ASSESSEE IS LIABLE TO PAY INTEREST U/S 234B FOR AND 234C OF THE ACT INASMUCH AS THERE IS DEFERMENT / SHORTFALL OF PAYMENT OF ADVANCE TAX BY WAY OF ADJUSTMENT WITH SEIZED CASH TILL THE DATE OF SUBMISSION OF REQUEST LETTER FOR ADJUSTMENT ON 10.04.2012 AND ACCORDINGLY INTEREST SHOULD BE CALCULATED KEEPING I N VIEW THE DEFERMENT AND SHORTFALL OF ADVANCE TAX PAID FOR THE SAID ASSESSME NT YEAR 2012-13 FOR THE MONTH / PART OF THE MONTH FOR SUCH SHORTFALL / DEFERMENT AS PER THE PROVISIONS OF ACT TILL THE AFOREMENTIONED DATE 10.01.2012. FURTHER ASSESSEE FI LED THE RETURN U/S 139 OF THE ACT ON 31.01.2013 WHICH IS BEYOND THE DUE DATE OF F ILING OF RETURN U/S 139(1) OF THE ACT. THEREFORE, ASSESSEE SHOULD ALSO BE LIABLE TO PAY INTEREST U/S 234A ON THE AMOUNT OF TAX AFTER ADJUSTING OF SEIZED CASH W.E.F 10.04.2012 AS DISCUSSED ABOVE. 4. AFTER HEARING THE LD. DR FOR THE REVENUE, WE NOT E THAT IN ASSESSEES CASE UNDER CONSIDERATION, A SEARCH AND SEIZURE ACTION TOOK PLA CE ON 17.01.2012 AND CASH OF RS. 1,83,45,000/- WAS SEIZED BY THE INCOME TAX DEPA RTMENT. HOWEVER, THE ASSESSEE FILED REQUEST LETTER BEFORE THE LD. DIRECTOR GENER AL OF INCOME TAX ON 10.04.2012, REQUESTING TO ADJUST THE SEIZED CASH AGAINST ADVANC E TAX LIABILITY FOR THE ASSESSMENT YEAR 2012-13. WE NOTE THAT THE ASSESSEES MONEY WAS WITH THE DEPARTMENT THAT IS IN THE CUSTODY OF THE DEPARTMENT AND THE DEPARTMENT WAS THE OWNER OF THE CASH SEIZED TO THE TUNE OF RS. 1,83,45,000/-. THE ASSESS EE WROTE A LETTER TO THE DGIT STATING THAT THE SEIZED CASH SHOULD BE ADJUSTED AGA INST THE ADVANCE TAX LIABILITY FOR A.Y. 2012-13. WE NOTE THAT THE ASSESSEE HAS DISCHAR GED HIS ONUS TO PAY THE ADVANCE TAX LIABILITY FOR A.Y.2012-13. WE ALSO NOTE THAT SOMETIMES THE DEPARTMENT ADJUST THE CASH SEIZED FROM THE ASSESSEE SUO MOTO AGAINST THE LIABILITY OF INCOME TAX OF THE ASSESSEE AND THE ASSESSEE DOE S NOT FILE REQUEST LETTER TO ADJUST SHRI RAKESH AGARWAL MA NO. 194/KOL/2018 (ARISING OUT OF I.T.A. NO. 76/KOL/2017) ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 3 33 3 THE SEIZED CASH TOWARDS HIS ADVANCE TAX LIABILITY, THAT IS, DEPARTMENT HAS POWER TO ADJUST THE SEIZED CASH SUO-MOTO, THEREFORE WE NOTE THAT THE QUESTION OF PAYMENT OF INTEREST U/S 234B AND 234C DO NOT ARISE. SINCE THE DEPARTMENT WAS ENJOYING THE MONEY OF THE ASSESSEE AND THE CASH TO THE TUNE OF R S. 1,83,45,000/- WAS WITH DEPARTMENT THEREFORE IN THESE CIRCUMSTANCES AND CON SIDERING THE PRINCIPLE OF NATURAL JUSTICE AND FAIR PLAY, WE NOTE THAT THE ASS ESSEE IS NOT LIABLE TO PAY INTEREST U/S 234B &234C OF THE ACT. HENCE WE DISMISS THE GRO UND RAISED BY THE REVENUE. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 24.05.201 9. SD/- ( A.T. VARKEY ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; / DATE: 24/05/2019 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. ACIT, CC-1(1), KOLKATA 2. SHRI RAKESH AGARWAL 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES