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TMI Blog2018 (6) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... the interest for default in payment of advance tax is not leviable u/s 234B for the reason that assessee had already made a request for adjustment of the amount against the advance tax which was already in the custody of the Department. Similarly, interest under section 234C is not attracted as there was no deferment. The assessee is entitled to adjustment of the seized cash against advance tax liability, therefore, no interest should be charged u/s 234A, 234B, and 234C of the Act, especially when the Department has assessee's money in the P.D. account. - Decided against revenue - ITA No. 76/Kol/2017 - - - Dated:- 30-5-2018 - SHRI A. T. VARKEY, JM And DR. A.L.SAINI, AM Appellant by : Shri G. Hangshing, CIT Respondent by :Shri N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit of seized cash to the tune of ₹ 1,75,00,000/- out of total cash seized during the course of search and seizure of ₹ 1,83,45,000/-, thereby omitting to give credit of the balance amount of ₹ 8,45,000/- ( that is, ₹ 1,83,45,000 - ₹ 1,75,00,000).The assessee submitted a request Letter on 10/04/2012 to DGIT (Inv) to treat seized cash of ₹ 1,83,45,000/- as Advance Tax for A.Y 2012-13.The Return of Income was filed by assessee on 31/01/2013,wherein he took the credit of seized cash. The assessing officer passed the assessment order u/s 143(3), on dated 31/03/2014, wherein credit of seized cash was not provided to the assessee. The assessee filed a rectification application on dated 05/05/2014, under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax as per explanation 2 to section 132B of the Act. The ld. DR further stated that the assessee s request to adjust the seizedcash, towards his advance tax liability, from the date of applicationi.e. on 10.04.2012 should not be entertained, as the provisions of section 132B of the Act, does not speak about and does not give the guidance that the Department should adjust the seized cash towards the advance tax liability of the assessee from the date of application itself. 6. Learned counsel for the assessee begins by pointing out that the assessee had already submitted a letter on dated 10.04.2012 to the ld. DGIT(Investigation), Kolkata with a request to treat the cash so seized during the course of search seizure operation,towar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he department but the assessing officer has not accepted the request made by the assessee, vide letter dated 10.04.2012 for the adjustment of advance tax against the seized cash to the tune of ₹ 8,45,000/- whereas the seized cash to the extent of ₹ 1,75,00,000/- has been adjusted by the assessing officer against the liability of the assessee towards liability for payment of advance tax. It seems to us that the assessing officer has accepted the request of the assessee partly to adjust the part amount out of total cash seized to the tune of ₹ 1,83,45,000/-, which is acceptable but the question arises that when the amount of ₹ 1,75,00,000/- has been adjusted by the assessing officer against the liability of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax credit for ₹ 8,45,000/-, which is not justifiable. The assessing officer ought to have adjusted ₹ 8,45,000/- against the tax liability of the assessee and for that we rely on the judgment of Hon ble Allahabad High Court in the case of CIT vs. Sunil Chandra Gupta [2016] 76 taxmann.com 372 (Allahabad) wherein it was held as follows: 6. We heard both the parties at length and carefully gone through the materials available on records from which it appears that, during the search, a huge cash was recovered. The assessee, while making statement under Section-134 of the Income Tax Act, offered to pay the tax on an undisclosed income of ₹ 10 Crore for which the tax would come to approve ₹ 3 Crore but the cash amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Allahabad High Court in the case of Sunil Chandra Gupta (Supra). We note that the Department seized the cash to the tune of ₹ 1,83,45,000/-and deposited in the in the P.D. Account of the company. The assessee made a request in writing dated 10.04.2012 for the adjustment of the cash seized against the liability of advance tax but the Department neither replied nor adjust the said amount of ₹ 8,45,000/-. The amount of ₹ 8,45,000/-, no doubt, it was available with the Department, andthe same could have adjusted against the advance tax, therefore, the interest for default in payment of advance tax is not leviable u/s 234B for the reason that assessee had already made a request for adjustment of the amount against the advance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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