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TMI Blog2016 (3) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... ar that the assessing authority shall ensure that the same amount is not taxed twice. Treating the cash seized as advance tax - not granting any relief towards wrongly charging of interest u/s. 234A, 234B and 234C - Held that:- Revenue only submits that the assessee raised this issue only in its return and not before that. We find that both the lower authorities have rejected its plea seeking interest relief inter alia for want of any specific prayer being made at its behest. We reiterate that the Revenue does not point out any exception to decision in accepting identical relief in Kanishka Print Pvt. Ltd vs. ACIT [2013 (7) TMI 14 - ITAT AHMEDABAD] of interest therein so far credit of advance tax is concerned. The assessee has also not filed any evidence to prove that it had made any specific prayer before filing its return along with statement of income including ₹ 80 lacs seized in search as advance tax. We draw support from above stated judicial precedent and hold the assessee is entitled for claiming the impugned credit relief w.e.f. date of filing return only. - IT(SS)A No.446/Ahd/2012, IT(SS)A No. 451/Ahd/2012, ITA No. 2294/Ahd/2013 - - - Dated:- 8-3-2016 - S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh flow statement along with an explanation as to how the same reached in the assessee s bank locker. The Assessing Officer did not agree to this contention. He observed that neither the assessee has established the fact that Shri Bhikubhai was the rightful owner of the cash found in locker nor was there any Board s conferring rights of holding cash in his favour. The Assessing Officer accordingly added the impugned cash receipt in assessee s hands in assessment order dated 30-12-2011. 4. The assessee preferred appeal. It highlighted the fact Shri Bhikubhai N. Padsala has filed application before the Income Tax Settlement Commission owning the impugned cash sum thereby including the same in his cash flow statement. Its case was that this cash seized has been generated out of unaccounted land transactions. The lower appellate authorities sought a remand report. The Assessing Officer filed the same on 12-07-2012 inter alia stating therein that Shri Bhikubhai had indeed included the impugned sum in his cash flow statement submitted before the Settlement Commission. This makes the CIT(A) to observe that there is no justification for adding the impugned cash seized in assessee s hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eleting the impugned addition on the ground that Shri Bhikubhai had incorporated cash seized in his cash flow statement. It quotes all relevant developments/documents placed before the Settlement Commission to submit that the Revenue did not raise any objection on above stated capitalization aspect. It accordingly prays for rejection of the instant appeal. 7. We heard these arguments on 18-02-2016. We put up a specific query to the ld. counsel as to whether Shri Bhikubhai was the authorized person to operate the locker in question or not. The case was fixed for hearing on 22-02-2016. Relevant documents did not come on the said date. We again postpone the hearing to 24-02- 2016 with last opportunity rider. The case is again taken up for hearing on today 24-02-2016. The assessee files its correspondence with HDFC Bank Ltd seeking clarification about its authorized signatory as on 04-03-2010 i.e. date of impugned search. The assessee files a certificate dated 22-02-016 before us to the effect that Mr. Sandip B. Padsala operated its locker in question on 04-03- 2010. The air is therefore clear that Shri Bhikubhai was not assessee s authorized person in its HDFC Bank locker from wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove in its favour. There is no dispute that facts in these two cases are almost identical. The search in question unearthed from HDFC Bank locker the impugned sum of ₹ 80 lacs. We notice that there is slight distinction on facts of these cases. This assessee in its reply dated 28-12-2011 categorically stated to have disclosed income of ₹ 1.6 crores inclusive of the above stated sum of ₹ 80 lacs. It files statement of its income before us stating to have included this sum as advance tax paid. This specific plea has nowhere been rejected in assessment order. The lower appellate order in turn accepts assessee s plea seeking to assessment of the impugned sum in Shri Bhikubhai s hands as per Settlement Commission proceedings. The assessee invites our attention to its computation declaring an income of ₹ 1.6 crores and argues that the same amount cannot be added twice in either case. We feel it more appropriate in these facts and circumstances that the ld. Assessing Officer needs to re-decide the entire issue as per law since there are contradictions being revealed qua assessment of the impugned unaccounted cash as indicated hereinabove. We made it clear that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly declared in the return of income filed on 31-5-2006. Hence, it can very well be inferred from the return so filed that the respondent/assessee was required to pay advance tax on such income as mandated u/s. 208 of the I. T. Act. Therefore, in view of the fact that there is no ambiguity in the provision so far application/adjustment of the seized money is concerned. Further, the judgments as relied upon by the Ld. D.R would not apply on the facts and circumstances of the present case since this is not a case where application u/s. 132(5) is made. Moreover, Section 132(5) is no more on statute book, even otherwise there is divergence in opinion between the Hon'ble High Court of Madhya Pradesh and Hon'ble Delhi High Court as fairly pointed by the Ld. D.R. The order of the ITAT Delhi Bench in ITA No.ll51/Del/2008 as relied by the Ld. D.R. is on different set of facts therefore, is not applicable on the facts of the present case. The issue whether the seized money should be applied towards advance tax liability of assessee and credit should be given credit there-from the date of seizure of money has been decided in favour of the assessee by the decision of ITAT Rajkot Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment will take effect from 1st June, 2013. (emphasis supplied) 14. In Taxmann's publication Interpretation of Statutes 2nd Edition by Shri D.P. Mittal at page 807 it has been stated as under:- The effect to be given to an explanatory amendment depends upon several factors, including its language. When the legislature has made the explanation operative prospectively by words expressed therein, its operation shall have to be confined to the future date. The same reasoning governs the case when Parliament limits the retrospectivity of the Explanation with effect from a particular date. In such a situation, giving future retrospectivity to the Explanation would be hijacking the intention of the Legislature into an impermissible area-CIT vs. Rajasthan Mercantile Co. Ltd. (1995) 211 ITR 400 (Delhi). Thus, there is no doubt that ordinarily, a statute, and particularly when the same has been made applicable with effect from a particular date, should be construed prospectively and not retrospectively . 15. Thus considering the totality of the aforesaid, interpretation of applicability of explanation, and amendment made by Finance Bill 2013, facts and respectfully ..... X X X X Extracts X X X X X X X X Extracts X X X X
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