9911796707
TMI Blog2021 (3) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... addition so made in the hands of assessee shall automatically stand deleted. We are also of the opinion that the computation of interest is integrally connected to the computation of income assessed. The primary duty of computation of income and interest thereon lies with the Assessing Officer and, therefore, it would be in the fitness of the facts, the matter pertaining to computation of income and interest is required to be remanded to the file of Assessing Officer. We remand the matter to the file of the Assessing Officer with the direction to comply with the decision of the Hon ble High Court treating the amount recovered from the impugned lockers as the income of Dr GG Dhir and thereafter decide chargeability of the interest on the residual amount after deleting the amount owned by the father. We make it abundantly clear that the date of chargeability of the interest on the residual income would be the date when such amount was due for taxation, in terms of the block assessment order. Appeals of the assessees are allowed for statistical purposes. - IT(SS)A. No.05 /Agra/2012 IT(SS)A. No. 06 /Agra/2012 - - - Dated:- 2-3-2021 - SHRI LALIET KUMAR , JUDICIAL MEMBER AND DR. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case as under: The assessee is son of a leading medical practitioner Dr. G.G. Dhir of skin disease at Agra. A search was conducted on 24.04.2003 at the residential premises of Dr. G.G. Dhir and bank lockers in the name of Dr. G.G. Dhir and his family members including assessee Shri Udgeath Dhir, Shri Ushaht Dhir and Smt. Vijay Dhir and subsequently action was taken in respect of the operation of lockers belonging to the members of the family. During the search, cash and jewellery as mentioned below were found: S.No. Found from Cash Rs. Jewellery Net Wt. gms Value 1. Residence of Dr. G.G. Dhir at 3A Ram Nagar Colony, Agra 22820 65 27500 2. Locker No. 1/25, PNB Dayal Bagh, Agra Joint names of Dr. G.G. Dhir and Smt. Vijay Dhir 6312700 - - 3 Locker No. 485, PNB Surya Nagar, Agra in the name of Shri Giridhar Gopal 436200 3382.250 1568299 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on u/s 158BC in their oases and filed Writ Petition before the Hon'ble Allabahad High Court (Civil Misc. Writ Petition No.284 of 2004) on 18.04.2004. The Hon'ble High Court ordered to; continue the assessment proceedings but no final order would be passed till decision of writ petitions. The assessees Smt Vijay Dhir, Shri Udgeeth Dhir and Shri Ushaht Dhir did not cooperated in the assessment proceedings. Respectfully following the directions of Hon'ble High Court an effort was made to continue the assessment proceedings in these cases but they did not cooperate in the assessment proceedings on the ground that they have challenged the jurisdiction u/s 158BC in their cases. The assessing officer had made the additions in the hands of the assessees. 3. Feeling aggrieved by the order passed by the Assessing Officer, the assessee challenged the order before the Commissioner of Income-tax (Appeals). The Commissioner (Appeals) in paragraph 6.5, in the case of Dr Udgeath Dhir recorded as under: 6.5 In Ground no. 6, the appellant has contended that on the facts and circumstances of the case, CIT(A) may give any other relief which he considers deemed to be fit. Duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal filed by the Department before the Hon'ble High Court would become final and the amount of ₹ 21,00,000/- declared by the appellant would get automatically deleted as the same income cannot be taxed in two different hands. In view of above appeal filed by the Department, since charging of this amount to tax in the hand of Dr. G.G. Dhir on substantive basis has not reached finality due to pendency of appeal before the Hon'ble Allahabad High Court, this amount would be considered to be taxed in the hands of appellant on protective basis till a final decision is taken by the Hon'ble Allahabad High Court with regard to charging of this amount to tax in the hand of Dr.G.G. Dhir. If this amount is decided to be taxed in the hand of Dr. G.G. Dhir, this amount would automatically get deleted in the hand of the appellant, otherwise this amount would be taxed in the hand of the appellant as his income as declared by him. Therefore, the AO is directed to treat the demand raised in the hand of the appellant vide the assessment order dated 30.12.2010 (in which only amount of ₹ 21 lac has been taxed), is being protective demand till a final decision is taken by the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the appellant was required to file his return of income by 18.11.2003. However, instead of filing of return of undisclosed income in time, the appellant under the advice of his counsel decided to challenge the validity of notice u/s 158BC on the ground of invalidity of search warrant and even for filing of Writ Petition, he took about 3 month time because the Writ Petition was filed on 18.02.2004. Later, this Writ Petition of the appellant was dismissed because it was filed on wrong interpretation of the provisions relating to search and seizure operation. Though it is correct that for final disposal of Writ Petition of the appellant, it took about 6 years, the fact is that the operation of the notice u/s 158BC dt. 16.10.2003 issued to the appellant was never stayed by the Hon'ble High Court during the pendency of decision on his Writ Petition because in the interim order dt. 26.02.2004, the Hon'ble High Court has clearly stated that the assessment proceeding may go on but no final order will be passed. Therefore, in view of this interim order, it became very clear that the appellant was required to co-operate with the department in the assessment proceeding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king cognisance of this affidavit. The Ld. AR's contention was that this addition was deleted in the hand of Dr. G.G. Dhir because the locker was owned up by the appellant and the Tribunal deleted the addition on the condition that an enquiry has to be made and addition should be made after enquiry in the hand of the persons to whom the locker belonged and since no enquiry was made by the AO before making addition of the amount of ₹ 21,00,000/- in the hand of the appellant and he just accepted this amount as declared by him which as per him was under protest, assessment of this amount in the hand of the appellant is not justified. Such argument of the Ld. AR clearly shows that since beginning, it is being tried to make contrary claims with respect to this amount to prevent this amount getting taxed in appropriate hand, though it is undisputed fact that this amount is unexplained. As I have already mentioned in this order that there is no provision in the Income-tax Act to file return under protest, therefore, whatever income is declared by a person, it is accepted a his income and during scrutiny, if any further income is detected belonging to him, further addition is mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of return is attributable to the appellant and hence, he is very much liable for paying interest u/s 158BFA(1) as computed by the AO in the assessment order and hence, all the three grounds i.e. Ground nos 1,2 and 3 taken by the appellant disputing levy of interest u/s 158BFA(1) are dismissed. As regards to various case laws cited by the Ld.AR as discussed in para nos. 5.1 to 5.3, these case laws are found to be either pertaining to not charging of interest u/s 234A or not charging of interest u/s 158BFA(1) when delay in filing of return or not attributable to the assessee due to delay in receiving photocopies of seized documents from the Department. I have already discussed in details in this order that charging of interest u/s 158BFA(1) is not similar to charging of interest u/s 234A and there is no delay in supplying seized documents to the appellant from the date of application given by him and he could also not explain any other reasonable cause for delay in filing of return. Therefore facts of all these cases being different than the facts of the case of the appellant, these case laws are not applicable in case of the appellant. 2. The facts and the legal position a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in the case of the father and effect of the said decision on the chargeability of interest. It is also admitted to the ld. CIT(A) that once the High Court holds the taxability of the impugned addition in the hands of assessee s father, the addition so made in the hands of assessee shall automatically stand deleted. We are also of the opinion that the computation of interest is integrally connected to the computation of income assessed. The primary duty of computation of income and interest thereon lies with the Assessing Officer and, therefore, it would be in the fitness of the facts, the matter pertaining to computation of income and interest is required to be remanded to the file of Assessing Officer. 9. In the light of the above we remand the matter to the file of the Assessing Officer with the direction to comply with the decision of the Hon ble High Court treating the amount recovered from the impugned lockers as the income of Dr GG Dhir and thereafter decide chargeability of the interest on the residual amount after deleting the amount owned by the father. We make it abundantly clear that the date of chargeability of the interest on the residual income would be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
