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TMI Blog2017 (12) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... tes to the assessbility of the petitioner to tax. Therefore, if the petitioner is entitled for waiver of interest under Section 234A of the Act for the reasons set out above, the question of payment of advance tax nor a portion thereof will not arise and therefore, the petitioner is entitled for waiver of interest under Sections 234B and 234C. - W.P. No. 21477 of 2004 - - - Dated:- 4-12-2017 - T. S. Sivagnanam, J. For the Petitioner : Mr. T. Vasudevan For the Respondents : Mr. A. P. Srinivas, Senior Panel Counsel ORDER Heard Mr.T.Vasudevan, learned counsel appearing for the petitioner and Mr.A.P.Srinivas, learned Senior Panel Counsel appearing for the respondent. 2. The writ petition has been filed challenging an order passed by the Chief Commissioner of Income Tax, Tiruchirapalli dated 11.02.2003 under Section 119(2)(a) of the Income Tax Act, 1961 (hereinafter referred to as the Act ), by which the petitioner's application for waiver of interest payable under Sections 234A, 234B and 234C of the Act for the assessment years 1997-1998 and 1998-1999 was rejected. The petitioner is an assessee on the file of the Deputy Commissioner of Income Tax for Circul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the waiver of interest under Section 234A of the Act, Clauses 2(a) and 2(e) of the Board Circular No.400 have to be fulfilled which are as follows: Clause 2(a) - where the accounts and documents have been seized u/s. 132 of the Income Tax Act, 1961 and because of the seizure of account books, the assessee could not file the return of income within the due date u/s. 139(1). Clause 2(e) - the return of income could not be filed by the assessee due to unavoidable circumstances and the return of income was filed voluntarily before detection by the Assessing Officer. 5. So far as the waiver of interest under Sections 234B and 234C of the Act is concerned, the assessee has to satisfy the following conditions: i.Where there was a seizure of case u/s 132/132A and the assessee had no other source to pay the advance-tax other than the cash seized and the cash was NOT allowed to be utilised to pay the advance-tax. ii.The total income (admitted/assessed) of the assessee, inter alia includes income other than Capital Gains which accrued to or received by the assessee after the due date for the first or subsequent instalment and the assessee has paid the advance-tax pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Division Bench in the case of Commissioner of Income Tax vs. S.Khader Khan son reported in (2008) 300 ITR 157 (Mad). One of the substantial questions framed for consideration was that the Court was called upon to consider whether the materials collected and the statement elicited during survey operation under Section 133A of the Act had any evidentiary value. After taking note of Sections 132(4) and 133A of the Act, it was held as follows: 6.In the instant case, there was a survey operation conducted under Section 133A of the Act in the assessee's premises and a statement was recorded from one of the partner. Assuming there were discrepancies and irregularities in the books of accounts maintained by the assessee, an offer of additional income for the respective assessment years was made by the partner of the firm. But, such statement, in view of the scope and ambit of the materials collected during the course of survey action under Section 133A shall not have any evidentiary value, as rightly held by the Commissioner and the Tribunal, since such statement was not attached to the provisions of Section 133A of the Act. It could not be said solely on the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, the petitioner had filed the return of income as early as in February 1999. Therefore, the survey conducted in the premises cannot be treated to be one of circumstances to show that there was a deduction of any income which has escaped assessment to tax. Therefore, this Court is of the view that the petitioner's case would squarely fall under Section Clause 2(e) of the Board Circular. Further, the Central Board of Direct Taxes by circular issued a Notification in F.No.286/2/2003-IT (Inv) dated 10.03.2003 with regard to the confessions recorded during the survey, search and seizure operations and it was held that while recording the statement during the course of search, seizure and survey operations, no attempt should be made to obtain confession as to the non-disclosed income. The above circular would add to the interpretation given by this Court to show that a survey cannot tantamount to deduction by the Assessing Officer as referred to Clause 2(E) of the Act. Thus, this Court is fully satisfied that the assessee due to unavoidable circumstances did not file return of income and had done so before issuance of notice under Section 148 of the Act which at best can be treat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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