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TMI Blog2017 (7) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive in nature applicable w.e.f. 1.6.2013 and is not applicable in the present case, since search was conducted on 30.6.2010. What emerges from the above is that as per the above decisions of the Jurisdictional High Courts, the cash seized is to be adjusted against the advance tax liability of the assessee from the date of making of application. In view of the decisions of the Jurisdictional High Court as above, this is the settled position of law on the issue at hand. Thus, we find that by not adjusting the same in the present case, an apparent error has occurred in the intimation of the assessee under section 143(1) of the Act which ought to be rectified. In view of the above, we direct that the seized cash be adjusted against the advance tax liability of the assessee from the date of making application to this effect, and necessary adjustment be made as a consequence to the interest to be paid under section 234B and 234C of the Act. - Decided in favour of assessee. - ITA No.920/Chd/2016 - - - Dated:- 22-11-2016 - SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER For The Appellant : Shri Vineet Krishan For The Respondent : Shri Sus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was no existing liability the cash seized could not be adjusted against the same, but could be adjusted only against the liability determined on completion of assessment. The Assessing Officer held that there was, therefore, no apparent mistake and rejected the rectification application filed by the assessee. 4. Aggrieved by the same, the assessee carried the matter before the Ld. CIT (Appeals) where the assessee contended that the issue of adjustment of seized cash against advance tax liability has been settled in favour of the assessee by the Jurisdictional High Court in the case of CIT Vs. Ashok Kumar reported in 334 ITR 355 CIT Vs. Arun Kapoor, 334 ITR 351, which has been followed by the I.T.A.T., Chandigarh Bench in the case of ACIT, Central Circle-III, Ludhiana Vs. Shri Hans Raj Gandhi in ITA No.739/Chd/2014,dt 18-11-14 and CIT, Central Circle, Patiala Vs. Shri Sanjeev Kumar Goyal in ITA No.936/Chd/2013,dt.27-03-15. The assessee, therefore, submitted that by not giving adjustment of the seized cash against the advance tax liability, an apparent error had occurred which ought to have been rectified when brought to the notice of the Assessing Officer vide the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT, the issue involved under Section 154 is binding on CIT(Appeals) as well as Id. Assessing Officer and is not debatable and the mistake apparent from the records is a rectifiable mistake under Section 154 of the Income Tax Act, 1961. 7. That in the facts and circumstances of the case, the Id. Commissioner of Income Tax (Appeals) gravely erred in upholding the action of the Id. Assessing Officer in charging interest of ₹ 8,34,820/- under Section 234B and ₹ 1,54,439/- under Section 234C of the Income Tax Act. 8. That the appellant craves to add, amend or alter any ground of appeal before or at the time of hearing of appeal with the permission of the Hon'ble Income Tax Appellate Tribunal, Chandigarh. 6. Before us, the Ld. counsel of the assessee stated that the issue of adjustment of seized cash against the advance tax liability of the assessee was not a debatable issue having been settled in favour of the assessee by the Jurisdictional High Court in a series of decisions i.e. CIT Vs. Ashok Kumar(supra) and CIT Vs. Arun Kapoor (supra). Moreover, the Ld. counsel of the assessee pointed out that even the issue of applicability of Explanation-2 to sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of seized amount towards advance liability from the date of making the application in that regard. The relevant portion of the order of the Punjab Haryana High Court in the case of CIT Vs. Ashok Kumar (supra) at para 5 is reproduced hereunder : 5. In CIT vs. Arun Kapoor, IT Appeal No. 149 of 2003 decided on 27th July, 2010, this Court had occasion to consider similar issue where it has been held that the assessee is entitled to adjustment of seized amount towards advance tax liability from the date of making the application in that regard. In the present case, the assessee had made request for adjustment of the advance tax of ₹ 3,14,312 against the seized amount of ₹ 5,90,000 on 28th Aug., 1989. Since the first installment of advance tax was payable on 15th Sept., 1989 and the request for adjustment having been made on 28th |Aug., 1989 and reminder on 12th Sept., 1989, no interest was exigible under ss.234A and 234B of the Act. The Tribunal has rightly held that the assessee was entitled to adjustment of the said amount and no interest could be charged on that basis. Therefore, no fault could be found with the approach adopted by the Tribunal. 9. In the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion or not. This question has been answered in favour of the respondent by this judgment. The Division Bench expressly held that the explanation is not retrospective in operation. 11. It is evident from the above that the Explanation-2 to section 132B of the Act is prospective in nature applicable w.e.f. 1.6.2013 and is not applicable in the present case, since search was conducted on 30.6.2010. 12. What emerges from the above is that as per the above decisions of the Jurisdictional High Courts, the cash seized is to be adjusted against the advance tax liability of the assessee from the date of making of application. In view of the decisions of the Jurisdictional High Court as above, this is the settled position of law on the issue at hand. Thus, we find that by not adjusting the same in the present case, an apparent error has occurred in the intimation of the assessee under section 143(1) of the Act which ought to be rectified. In view of the above, we direct that the seized cash be adjusted against the advance tax liability of the assessee from the date of making application to this effect, and necessary adjustment be made as a consequence to the interest to be paid under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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