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TMI Blog2024 (11) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... that the order of first-appeal passed by CIT(A) was non-est for want of DIN and therefore the ITAT had no occasion to deal such an issue. Now, the assessee is trying to set right his own lapse/ mistake and for that matter going to upset the impugned order of ITAT. When the issue did not form part of appeal of assessee, how can there be a mistake apparent from record in the impugned order? Therefore, we do not find any merit in the claim of assessee; the same is hereby rejected. ITAT upholding the addition made by AO as ITAT has not considered CBDT Instruction No. 3 of 2017 dated 21.02.2017 read with Press Release dated 18.11.2016 wherein the CBDT allowed household savings of ladies upto Rs. 2,40,000/- - A careful consideration, we find that the ITAT has extensively dealt assessee s issue and thereafter taken a reasoned decision.assessee s claim that the ITAT has not dealt Instruction dated 21.02.2017 is wrong. So far as the decision of Chetnaben J. Shah Vs. ITO [ 2016 (7) TMI 973 - GUJARAT HIGH COURT ] there is no quarrel with the proposition that the authorities cannot make any addition on the basis of mere statement. In fact, this view is time and again accepted by various courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BER AND SHRI B.M. BIYANI, ACCOUNTANT MEMBER For the Assessee: Shri Pawan Ved, Adv For the Revenue: Shri Ashish Porwal, Sr. DR ORDER Per B.M. Biyani, A.M.: This Misc. Application [ M/A ] u/s 254(2) of Income-tax Act, 1961 is filed by Assessee seeking rectification/re-call of Order dated 01.09.2023 of ITAT, Indore Bench in ITA No. 71/Ind/2022 for assessment-year 2017-18 [ impugned order ]. 2. Ld. AR for assessee carried us to the contents of Original M/A as well as the Supplement there to subsequently filed by assessee and briefed four types of apparent mistakes noted by assessee in the impugned order of ITAT which require rectification/re-calling. Then, the learned Representatives of both sides made vehement pleadings. We have heard them peacefully at length and proceed to give our adjudication in subsequent paragraphs. 3. The first mistake claimed by assessee is such that the order of first- appeal passed by CIT(A) was without DIN and therefore non-est as per CBDT Circular dated 14.08.2019. The assessee states though this issue was not part of appeal before Hon ble ITAT, it is apparent from record and visible to the Hon ble ITAT so it should have suo motu treated the order non- est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first, we may understand the background facts relating to this issue. The Income-tax Department received an information from the office of SP, ATS, Jaipur about three persons (including assessee) traveling from Ratlam to Jaipur on 14.11.2016 (shortly after declaration of demonetisation on 08.11.2016) carrying cash of Rs. 49,99,000/- in the form of demonetized currency notes of Rs. 500 and Rs. 1,000/-. Acting thereupon, the statements of all three persons (including assessee) were recorded u/s 131 wherein all of them (including assessee) admitted that the entire cash belonged to assessee. Accordingly, a requisition u/s 132A was made and the statements of assessee were re-recorded u/s 132(4) wherein the assessee accepted that the impugned cash was not recorded in his books and it was earned from undisclosed sources. However, the assessee declared undisclosed income of Rs. 47,59,000/- only in his return of income filed subsequently and therefore the AO, while framing assessment, made an addition of short- disclosure of Rs. 2,40,000/- [Rs. 49,99,000 (-) Rs. 47,59,000]. The assessee s claim to justify short-disclosure was that it belonged to his wife s savings and therefore protected by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has, taking note of CBDT Circular No. F.No. 286/2/2003-IT(n) dated 10.03.2003 and Circular No. F.No. 286/98/2013-IT (Inv.II) dated 18.12.2014, held that the authorities cannot make any addition on the basis of mere statement; the addition must be based on evidences. He went on submitting that it is a fact that the assessee s wife did not make any deposit out of demonetized currency in her bank a/c, therefore the benefit of Rs. 2,40,000/- as per Instruction dated 21.02.2017 ought to have been allowed to assessee. Ld. DR for revenue submitted that the ITAT has dealt the assessee s issue vehemently and made a proper adjudication. But if the assessee is still aggrieved, the assessee cannot seek review in this M/A although the assessee may avail a different remedy as may be available in law. On a careful consideration, we find that the ITAT has extensively dealt assessee s issue and thereafter taken a reasoned decision in Para No. 9 to 12 of order. Therefore, the assessee s claim that the ITAT has not dealt Instruction dated 21.02.2017 is wrong. So far as the decision of Chetnaben J. Shah Vs. ITO (supra) is concerned, there is no quarrel with the proposition that the authorities c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment though made on 15.12.2016, would apply to the whole previous year 2016-17 relevant to AY 2017-18. Then, Ld. DR also submitted that in Shri Krishan Kumar Verma (supra) relied by Ld. AR, the undisclosed income of assessee was found not taxable u/s 69A and consequently section 115BBE itself was not applicable whereas in present case of assessee, the undisclosed income in the form of demonetized currency was found taxable u/s 69A and section 115BBE was also held to be applicable. Therefore, the case of Shri Krishan Kumar Verma (supra) had different facts and the assessee cannot take any benefit out of it. On a careful consideration, we find merit in the submissions made by Ld. DR for revenue. Therefore, without repeating the same for the sake of brevity, we agree with Ld. DR s submissions. For the sake of clarity, we may only mention that when we questioned Ld. AR for assessee in the open court as to whether the decision of Hon ble Kerala High Court in Maruthi Babu Rao Jadav (supra) is the only decision available on the issue of applicability of the amendment made on 15.12.2016 prescribing higher rate in section 115BBE to whole previous year 2016-17, AY 2017-18 or is there any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 132B. Application of seized or requisitioned assets from 01.06.2013 which prohibits the adjustment of seized/requisitioned asset against advance-tax liability: Explanation 2.- For the removal of doubts, it is hereby declared that the existing liability does not include advance-tax payable in accordance with the provisions of Part C of Chapter XVII . It was further pointed out to Ld. AR that the decision in Ashok Kumar (supra) was prior to introduction of this Explanation in section 132B and therefore not applicable. Hence, the adjustment of seized-cash is not allowable against advance-tax liability. Still the Ld. AR prayed to allow the benefit of adjustment on the ground of equity in view of the fact that the assessee was not having any money except the seized cash and the assessee made a specific request to AO to adjust the seized cash against advance-tax liability. Thereafter, some more discussion took place wherein it emerged that the assessee deserves some relief in the matter of calculation of interest u/ s 234B for the reason that the newly inserted Explanation does not restrict adjustment against self-assessment liability . 20. In a recent decision in CIT Vs. Arun Bansal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned, these are already recorded by ITAT in above-reproduced order while dealing the issue of interest u/s 234B. Those facts clearly reflect that (i) the entire cash of Rs. 49,99,000/- was seized by Income-tax Department and it remained in possession of Income-tax Department, and (ii) the assessee filed a letter dated 07.01.2017 to the AO requesting that he does not have any other money and the seized amount may be deposited to Govt. On those facts, the ITAT has accepted that the cash seized should have been adjusted against self-assessment tax payable with the return of income and thereafter remanded the matter to AO with a direction to re-compute interest u/s 234B after giving benefit to assessee. In the same line, we find following decision of ITAT, Kolkata in Nitin Kumar Vs. ACIT, ITA No. 1457/Kol/2016 order dated 04.04.2018 giving benefit in the matter of interest u/s 234A, as under: 5. We have heard the rival submissions. We find that the assessee had to pay tax on the undisclosed income declared by him in the return of income. Admittedly, the assessee had not made any payment towards self-assessment tax but had only pleaded to appropriate the same out of seized cash availa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee could not be fastened with interest liability for the delayed adjustment of seized cash by the ld. AO. Hence, we direct the ld. AO to charge interest u/s 234B of the Act on the tax payable on the assessed income for one month only i.e. for April, 2011. 5.2 With regard to interest u/s 234C of the Act, it is levied for deferment of payment of advance tax for the period of 01.04.2010 to 31.03.2011. In the instant case, since, the cash was seized after the expiry of the previous year i.e. after 31.03.2011, the assessee cannot claim non-chargeability of interest u/s 234C on that account. Hence, interest u/s 234C of the Act is leviable in this case. 6.3 There is a CBDT Circular 2/2015 dated 10.02.2015 accepting that the self-assessment tax paid by assessee before due date of return shall be deducted for computation of interest u/s 234A, as under: Circular 2/2015 F. NO. 385/03/2015-IT(B) GOVERNMENT OF INDIA Ministry of Finance Department of Revenue Central Board of Direct Taxes (CBDT) North Block, New Delhi 10th February, 2015 Subject: Chargeability of Interest under Section 234A of the Income-tax Act, 1961 on self-assessment tax paid before the due date of filling of return of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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