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TMI Blog2015 (11) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... t in respect of seized cash of ₹ 20,00,000/-. - IT(SS)A No.01/Kol/2012 - - - Dated:- 28-9-2015 - Shri Mahavir Singh, JM Shri M.Balaganesh, AM For The Appellant : Shri S.Srivastava, CIT(DR) For The Respondent : Shri A.K.Tibrewal, FCA ORDER Per Shri M.Balaganesh, AM 1. This appeal of the revenue arises out of the order of the Learned CIT(A) in Appeal No.01/CC-XXIV/CIT(A)/C-III/10-11 dated 21.10.2011 for the Asst Year 2006-07 arising out of the order of the Learned Assessing officer framed u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ). 2. Shri.A.K.Tibrewal, FCA, the Learned AR argued on behalf of the assessee and Shri.Sachidhanand Srivastava, the Learned CIT DR argued on behalf of the revenue. 3. The only issue to be decided in this issue is as to whether the Learned CIT(A) is justified in allowing the adjustment of seized cash against self assessment tax liability though the Act does not provide for adjustment of seized cash before determination of tax liability. 4. The brief facts of this issue is that the search and seizure operation was conducted on Thacker Group on 27.7.2006 and it was seen that the four ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 153A of the Act for the Asst Year 2006-07, made a request for adjustment of seized cash towards self assessment tax payable by the assessee. He argued that the action of the Learned AO in adjusting the seized cash towards the tax liability determined pursuant to search assessment framed u/s 153A of the Act, is in accordance with law. However, his subsequent action of revoking the said adjustment of seized cash is illegal. 6. We have heard the rival submissions and perused the materials available on record. We find that the action of the Learned AO in adjusting the seized cash towards the tax liability determined to be payable pursuant to section 153A assessment framed by the Learned AO is in order in terms of section 132B of the Act. For the sake of convenience, the provisions of section 132B of the Act is reproduced here in below:- 132B. (1) The assets seized under section 132 or requisitioned under section 132A may be dealt with in the following manner, namely:- (i) the amount of any existing liability under this Act, the Wealth-tax Act, 1957 (27 of 1957), the Expenditure-tax Act, 1987 (35 of 1987), the Gift-tax Act, 1958 (18 of 1958) and the Interest-tax Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipal Commissioner or] Commissioner under sub-section (5) of section 226 and the Assessing Officer or, as the case may be, the Tax Recovery Officer may recover the amount of such liabilities by the sale of such assets and such sale shall be effected in the manner laid down in the Third Schedule. (2) Nothing contained in sub-section (1) shall preclude the recovery of the amount of liabilities aforesaid by any other mode laid down in this Act. (3) Any assets or proceeds thereof which remain after the liabilities referred to in clause (i) of sub-section (1) are discharged shall be forthwith made over or paid to the persons from whose custody the assets were seized. (4) (a) The Central Government shall pay simple interest at the rate of one-half per cent for every month or part of a month on the amount by which the aggregate amount of money seized under section 132 or requisitioned under section 132A, as reduced by the amount of money, if any, released under the first proviso to clause (i) of sub-section (1), and of the proceeds, if any, of the assets sold towards the discharge of the existing liability referred to in clause (i) of sub-section (1), exceeds the aggregat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not procedural law and is a substantive levy on the part of the government on the assessee and hence could be held to be prospective in operation only. Reliance is placed on the decision of the apex court in the case of CWT vs Sharvan Kumar Swarup and Sons reported in 210 ITR 886 (SC) , wherein it was held that :- Substantive law is concerned with the ends which the administration of justice seeks ; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated. What facts constitute a wrong is determined by the substantive law ; what facts constitute proof of a wrong is a question of procedure. So far as the administration of justice is concerned with the application of remedies to violated rights, we may say that the substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other. It is also pertinent to look into the larger bench decision of the apex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. We find that the decision of the principle laid down by the larger bench of the apex court in the case of CIT vs Vatika Township P Ltd in 367 ITR 466 (SC) would squarely apply to the applicability of the amendment brought in section 132B with effect from 1.6.2013 and accordingly we hold that the amendment brought in section 132B would be construed prospective only as it is a provision which is onerous to the assessee. 9. Moreover, even if we hold that the said amendment in section 132B of the Act is to be construed as retrospective in operation, still it will not disturb the impugned case as in the facts of the instant case, the assesee never requested for adjustment of seized cash towards advance tax liability. He only requested for adjustment of seized cash towards self assessment tax. It is beyond doubt that the terms advance tax and self assessment tax are distinct and separate. 10. Looking at the issue of the Learned AO under section 154 proceedings revoking the adjustment of seized cash towards the tax liability determined on completion of search assessment from another angle, we find that this issue has reached the corridors of various courts as to the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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