2023 (1) TMI 522 - AT - Income Tax

Interest charged u/s. 234B - adjustment of the tax liability against the cash seized - since the assessee do not have liquid funds to pay the tax dues the tax liability should be adjusted from the seized amount lying with the department since 01.12.2018 - HELD THAT - In our considered opinion once the assessee has repeatedly asked the revenue to adjust the tax liability against the cash seized on 01.12.2018 the AO should have adjusted the tax liability immediately on framing the assessment order. In our understanding of law the cash seized by the department should have been adjusted with self assessment tax payable with the return of income in accordance with section 132 B - A similar view was taken by the coordinate Bench Kolkata Tribunal 2015 (11) TMI 62 - ITAT KOLKATA . The communication of the assessee with the department mentioned elsewhere clearly suggest that the assessee was not asking to adjust the seized cash towards advance tax but was praying the adjustment towards self assessment tax. On these peculiar facts of the case we do not find any merit in charging the interest u/s. 234B of the Act the AO is accordingly directed to delete the interest charged u/s. 234 B of the Act. Penalty u/s. 271AAB - cash was seized by the revenue officers and the assessee was penny less and could not pay the requisite taxes but filed his return of income - AO found that the sum of Rs. 88 lacs which was offered voluntarily for taxation u/s. 69 A was not shown in the return of income by the assessee - HELD THAT - Assessee has already surrendered Rs.88 lacs being cash amount in the locker as undisclosed income to be taxed u/s. 69 A of the Act and offered the same for taxation. Therefore, it can be safely concluded that the assessee declared on or before the specified date as per the definition of undisclosed income given in clause C of section 271 AAB (2) of the Act Assessee offered the income in the letter filed during the course of the assessment proceedings as the return could not have been revised electronically for want of tax payment and the amount of Rs.88 lacs was lying with the department since 01.12.2018 the assessee was helpless and was not in a position to pay the taxes. Since the income was offered for taxation even before the search was conducted, therefore, it cannot be said that Rs.88 lacs was found and seized as a result of search. Considering the peculiarity of the facts we do not find any merit in the levy of penalty u/s.271 AAB of the Act. We accordingly direct the AO to delete the penalty so levied. - Decided in favour of assessee.

Summary

Issues Involved:
1. Levy of interest under Section 234B of the Income Tax Act.
2. Levy of penalty under Section 271AAB(1A) of the Income Tax Act.

Issue-wise Detailed Analysis:

1. Levy of Interest under Section 234B:

The appeals ITA No.300/Del/2022 and 2748/Del/2022 pertain to the assessment order dated 27.02.2021 and the penalty order dated 27.03.2022, respectively. The case involves a search and seizure operation conducted on 01.12.2018, where Rs. 88 lakhs were found and seized from the assessee's locker. The assessee offered this amount for taxation under Section 69A but did not show it in the return of income due to a lack of liquid funds to pay the taxes. The assessee requested the tax liability to be adjusted from the seized amount, but this was dismissed by the AO and CIT(A), leading to the completion of assessment at Rs. 90,65,830/- with the addition of Rs. 88 lakhs.

The assessee challenged the levy of interest under Section 234B, arguing that the seized amount should have been adjusted against the tax demand. The Tribunal noted that the assessee repeatedly requested the adjustment of the seized cash towards the self-assessment tax, which should have been done by the AO according to Section 132B. The Tribunal found no merit in charging interest under Section 234B and directed the AO to delete the interest charged.

2. Levy of Penalty under Section 271AAB(1A):

The second appeal ITA No.2748/Del/2022 deals with the penalty levied under Section 271AAB(1A). The search operation on 01.12.2018 led to the seizure of Rs. 88 lakhs, which was included in the assessed income of Rs. 90,65,830/-. The AO imposed a penalty of Rs. 52,80,000/- at 60% of the undisclosed income, citing the provisions of Section 271AAB(1A)(b).

The Tribunal examined the provisions of Section 271AAB and noted that the assessee had already surrendered Rs. 88 lakhs as undisclosed income in response to a summon issued under Section 131(1A) before the search. The Tribunal concluded that the income was offered for taxation before the search, and thus, it cannot be considered as found and seized as a result of the search. Consequently, the Tribunal found no merit in the levy of penalty under Section 271AAB and directed the AO to delete the penalty.

Conclusion:

The Tribunal allowed the appeal partly regarding the interest under Section 234B and fully regarding the penalty under Section 271AAB, emphasizing that the decisions were based on the peculiar facts of the case and do not set a precedent.