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TMI Blog2001 (8) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... advance tax and interest under s. 234B and 234C in violation of the provisions of s. 132B of the IT Act, 1961". 3. The facts of this appeal are that a search and seizure operation was carried out on18th Feb., 1993at the business premises of the assessee and at the residential premises of its partners. From the residential premises of its partner, following unexplained assets were found and seized by the search party: Rs. (a) Cash from residential house where all the partners are jointly residing 31.50 lacs (b) Jewellery found from the possession and control of the partners from their residential house as well as from their lockers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action of the CIT(A) on this account is unjustified and deserves to be reversed. 6. Learned authorised representative on the other hand, drew our attention to the provisions of s. 219 of the Act. Besides it was submitted that just after the seizure of the cash, assessee in his written request dt.10th March, 1993, made before the AO submitted that the cash seized be adjusted against the advance-tax. It was further argued that the order under s. 132(5) was passed on17th June, 1993and, therefore, after this date, the balance amount seized should have been adjusted against the advance tax liability particularly when there was no other tax liability existing on that date. 7. We have examined the facts of this ground of appeal and are of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found recorded in the books of accounts of the previous year relevant to the assessment year under consideration. That the charge of the interest under s. 234C is illegal and unjustified as the assessee started it's commercial production on17th Sept., 1992, as admitted by the AO in the assessment order and, therefore, there is no liability for payment of advance tax instalment. 9. During the course of hearing of this appeal, assessee has moved an application for admitting an additional ground of appeal viz. "that the levy of interest under ss. 234B and 234C is illegal and unjustified when there was no specific direction in the assessment order of such levy and when these sections were not attracted on the facts of the case at all." 9.1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, argued that unless rebutted the unexplained investment/income found from the residence of the partners can be taxed only in the individual hands of the partners under whose control and possession the valuables were found, It was further argued that from the statement recorded at the time of search under s. 132(4), it is very clear that the surrender was made as income of the business. The firm commenced its production during the instant year and that the income was derived from the business of manufacturing and sales of furnishing fabrics. 11. It was further submitted that conditions as specified under s. 80-IA have also been satisfied and, therefore, allowance under s. 80-IA should have been allowed. On this account, the learned auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l premises besides cash. It is clear that none of these items were seized from the business premises through the main partner of the assessee-firm has surrendered it under s. 132(4) in the name of the firm. On the date of search, these items were not entered in the books of the appellant. It is only at the end of the accounting period that the same was entered in the books of account. By this action itself, the transaction in question would not become business transactions. Keeping in view the above facts decision of the Kerala High Court in the case of V. Kunhambu Sons vs. CIT is fully applicable to the facts of this case. We, therefore, decline to interfere in the order passed by the CIT(A) on this account. We accordingly dismiss ground ..... X X X X Extracts X X X X X X X X Extracts X X X X
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