9911796707
TMI Blog2012 (4) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... interest on the above amount of Rs. 1,60,000 from July 5, 1996, till December 2, 1996, as calculated under section 244A(1)(b). - Decided in favor of the assessee - 1020 of 1997 - - - Dated:- 12-1-2012 - DHARMADHIKARI B. P., KODE P. D., JJ. JUDGMENT B. P. Dharmadhikari J.- 1. The petitioner, an assessee, has filed this petition under articles 226 and 227 of the Constitution of India seeking direction to respondent No. 1, Commissioner of Income-tax, and respon- dent No. 2, Assistant Commissioner of Income-tax, to pay interest to him under section 132B(4) of the Income-tax Act, 1961, with further prayer to pay interest under the Interest Act, 1978, from March 16, 1995, onwards at 18 per cent. per annum. However, during argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and no interest whatsoever was granted. 4. In this background, Shri Bhattad, learned counsel for the petitioner has invited our attention to the provisions of sections 132(5), 132B and section 244A to contend that interest, as envisaged therein, ought to have been granted and its denial is contrary to the settled law. The judgment of the hon'ble apex court in the case of Sandvik Asia Ltd. v. CIT reported at [2006] 280 ITR 643 (SC) ; AIR 2006 SC 1223, is also relied upon by him to urge that even in the absence of express statutory provision, the hon'ble apex court has found interest payable in this situation. 12th January, 2012 5. Shri Parchure, learned counsel for the respondents, has contended that section 132 by itself does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was needed. Its sub-section (3) clearly stipulates that section 244 does not apply to any assessment for the assessment year commencing on April 1, 1989, or any subsequent assess- ment years. Here, it is not in dispute that the relevant assessment year is 1993-94 and, therefore, section 244 has no application. 8. The provisions of section 132 dealing with search and seizure, in sub- section (5) oblige the Income-tax Officer, with the previous approval of the Deputy Commissioner, to make an order within 120 days of such seizure and for that purpose, he has to extend an opportunity to the person concerned and hold an enquiry. The order has to be estimating the undis- closed income in a summary manner to the best of his judgment, calcu- l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount in excess is directed to be released forthwith to the person from whose custody it was seized. Thus, what can be retained in custody is the aggregate of amounts quantified by the Income-tax Officer as tax on estimated income, as interest and penalty and also the existing liability under the Income-tax Act and any one or more of the Acts specified in section 230A(1)(a). It is, therefore, obvious that liability to pay tax on estimated income and penalty and interest in that respect is determined provisionally under clause (ii) and (iia) of sub-section (5) of section 132. This determination is to be added to the figure of the existing liability envisaged under clause (iii). If arguments of Shri Parchure, learned counsel and his inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver or pay to the person from whom the said amount was seized, the amount remaining in balance after the liabilities referred to in clause (i) of its sub-section (1) are specified. It is, therefore, obvious that if there is surplus with the respondents, law enjoins the respondents to pay that surplus back to the assessee from whom the said amount is seized. The provisions of section 244 are, therefore, not relevant in so far as this treatment to the assets or amount retained in search and seizure operation is concerned. 10. It needs to be noted that the petitioner has not attempted to even show that when the express provisions regulating grant of interest exist in the Income-tax Act, interest can be awarded by ignoring that scheme. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34,572 on March 16, 1995, has been reduced to Rs. 1,654 on July 4, 1996. The petitioner paid an amount of Rs. 34,572 towards the tax liability in cash in May, 1995. Thus, in the present facts, it was not adjusted from the amount of Rs. 1,60,000 which was retained by the respondents. As per the above provisions, interest is payable only on excess amount and that too till the date of the last assessment. Here, that date is July 4, 1996. The excess amount retained by the respondents is Rs.1,58,346. Thus, the respondents have to pay to the petitioner interest in terms of section 132B(4)(a), (b) from June 24, 1993, till July 4, 1996, on this amount of Rs. 1,58,346. The payment of amount of Rs. 34,572 as taxed directly in cash by the petitioner i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
