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TMI Blog2013 (4) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... is to implement the provisions of the Act, there should be safety and assurance to an honest tax-payer. The Apex Court in the case of Sandvik Asia Ltd. (2006 (1) TMI 55 - SUPREME Court) by the following paragraph has recorded their displeasure for this kind of attitude of the department. We also do not appreciate the argument of the respondent that unless a direction is issued, the respondents shall not pass any speaking order on the application filed by the petitioner for refund. As seen above, it is clear that the revenue official failed to take any decision right or wrong on the refund application filed by the petitioners and passed on the buck on the Court. In the result, the writ petition succeeds and is allowed. The respondents are directed to refund in all Rs.25 Lakhs seized from the petitioners along with interest. - Writ Tax No.-1357 of 2012 - - - Dated:- 17-4-2013 - Prakash Krishna And Ram Surat Ram (Maurya),JJ. For the Petitioner : Parv Agrawal,Shubham Agrawal For the Respondent : C. S. C., It,Govind Krishna,R. K. Upadhyay JUDGMENT (Delivered by Prakash Krishna, J.) Three brothers namely Sri Vijai Prakash Agrawal, Satya Prakash Agrawal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. All the appeals were allowed. In the light of the Appellate Orders, the Assessing Authority revised the assessment orders in the case of all the petitioners by the separate order dated 30th of August, 2011. The amount of taxes which were deposited in pursuance of the assessment orders have been refunded with interest. They are not in dispute in the present writ petitions. After completion of all these proceedings, the petitioners applied for realizing/return of the cash amount seized by the department in the search operation. The reminders were given but of no avail. Hence, the present writ petition has been filed for return of the seized cash amounting to Rs.25 Lakhs along with interest in the light of sections 132 B(4) (b) and 244A of the Income Tax Act. In reply, Sri Sushil Chand Srivastava, Income Tax Inspector in the office of the respondent no.2 has filed a counter affidavit wherein the facts as stated above, have not been disputed. The only defence which has been set up is that "substantial demands have been raised against M/s. Banarasi Misthan Bhandar (P) Limited and Jeevan Kumar Agrawal. Therefore, the seized cash cannot be released as claimed." In the writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds the aggregate of the amount required to meet the liability referred to in clause (i) of sub-section (1) of section 132B. The interest shall run from the date of immediately following the expiry of the period of one hundred and twenty days from the date on which the last of the authorisations for search under section 132 or requisition under section 132A was executed to the date of completion of the assessment. Coming to the facts of the case, the search took place on 17.10.2006. In the said search it is not in dispute that the amount of Rs. 25 Lakhs as claimed by the petitioners were seized from the petitioners from their respective possession. In view of section 132 B(4) (b) of the Act, the Central Government is liable to pay interest at the rate as provided thereon after the expiry of the period of 120 days to the date of completion of the assessment. The one hundred twenty days under section 132B shall expire on 16th of February, 2007. The assessments were finally completed after giving effect to the appellate order on 30th of August, 2011. Therefore, the petitioners are entitled to get the interest at the rate as was prevalent at that time on Rs. 25 Lakhs, thereunder. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fic case that none of them have any business link or nexus or transaction or interest or investment or share or connection in any manner whatsoever with Banarasi Misthan Bhandar and with Sri Jeewan Kumar Agrawal vide para 10 of the writ petition. For the sake of convenience paragraph-10 is reproduced below:- "That none of the petitioners have any business link or nexus or transaction or interest or investment or share or any commercial concern or connection in any manner whatsoever with Banarsi Mishthan Bhandar (P) Ltd. or with Sri Jeewan Kumar Agrawal." The contents of paragraph-10 have been dealt with in para 9 of the counter affidavit. For the sake of convenience, paragraph-9 of the counter affidavit is reproduced below:- "That the deponent submits that the averments contained in paragraphs 9 and 10 of the writ petition are not properly stated. The search was in respect of the entire premises and the Panchnama (Annexure-1 of the petition) indicates that the petitioners as well as others found at the premises were connected with each other." Similar averments have been reiterated in paragraph-15 of the counter affidavit. Having regard to the pleadings of the parties, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e than one in the warrant of authorisation will not make it in the name of association or persons or body of individuals will not adversely affect an assessee. Meaning thereby, the status of the assessee will not in any manner be changed as the result of joint warrant of authorisation. Coming to the facts of the case indisputably, the department respondent has treated the petitioner nos. 1, 2 and 3 as individuals and petitioner no.4 as a partnership firm and assessed them accordingly, and separately. Not only that as a result of original assessment order making addition, the demand was paid by the petitioners and refund after the order of the Appellate Court have been granted to the petitioners individually. To put it differently, the stand of the department that as in the warrant of authorisation, the names of the petitioners were also included along with Jeewan Kumar Agrawal and Banarasi Misthan Bhandar (P) Limited is wholly irrelevant so far as assessment and refund of asset or cash is concerned. Except that the department could not point out any connection whatsoever of the petitioners with Jeewan Kumar Agrawal and Banarasi Misthan Bhandar (P) Limited. The irresistible conclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng and sub heading of Chapter XIII suggests the appointment and control of the income tax authorities, their jurisdiction and powers, the whole gamut for assessment has been provided for in Chapter XIV inclusive of search and seizure case for which the assessment order has to be framed under the aforesaid Chapter. In the case in hand the assessment order was framed under Section 143(3) of the Act as at that time there was no provision for making block assessment which came into force w.e.f. 1st July, 1995 through which Chapter XIV-B special procedure for assessment of search cases was inserted by the Finance Act, 1995. The phrase "existed as otherwise provided in this Act'' in Section 240, therefore, contemplates a situation that there may be cases where the assessing authority shall not refund the amount to the assessee without his having to make any claim in that behalf. Moreover, the heading of Section 240 suggests its applicability in the case of refund on the basis of appellate order or other proceeding under the Act etc. The phrase other proceedings would also means assessment order or revisional order etc. It is not necessary to dwell Upon section 240 any more as in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Versus Commissioner of Income Tax, (2006) 2 SCC 508, they are entitled to get interest upon interest amount. Reliance was also placed on a subsequent decision of Division Bench of this Court in Writ Petition No.102 of 2012: Prayag Udyog Pvt. Limited Allahabad versus Union of India and others decided on 31st of May, 2012. In reply, our attention was drawn to CIT Versus Gujrat Flouro Chemicals (2012) 348 ITR 319 wherein the Supreme Court has doubted its earlier decision in the case of Sandvik Asia Ltd. (supra) and the matter has been referred for reconsideration. The matter is engaging attention of the Apex Court and therefore, we leave the matter as it is by providing that if the respondents return the seized amount along with accrued interest within a period of one month to the petitioners, they would not be liable to pay interest upon interest amount. It is true that the matter is engaging attention of the Apex Court but it is also true that the relied upon judgment in the case of Sandvik Asia Ltd. (supra) is still operating and only its correctness has been doubted. If the department fails to return the seized cash amount along with interest as stipulated within stipulated time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below:- "49. The decision of the Delhi High Court in Goodyear's case [2001] 249 ITR 527 was on the assumption that the term "any amount" in Section 240 would include all amounts payable to the assessee, including interest, and therefore, the assessee was held to be entitled for interest on interest. For the reasons stated above and with respect, it is difficult to agree with the said proposition. In any case, the facts of the matter also disclose that the interest which was included in the amount due as refund was the one payable in terms of Section 214. This is clear from the observation in the judgment that (page 532) : "Merely because this was inclusive of an amount which ,was payable under Section 214 of the Act, that would not make the position any different" and the arguments canvassed on behalf of the Revenue were to the effect that (page 530) : "In a sense it was submitted that such a refund of the amount paid by the assessee or on its behalf under Section 240 as well as Section 244 are relatable to such amount only and not to any interest payable under Section 214 of the Act". The petitioners have been unnecessarily driven to this Court to file the present writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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