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TMI Blog1995 (7) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... cash Seized, in course of search seizure operation in September/October. In this connection your kind attention is drawn to the order under section. 132(5) wherein on our request the said amount was treated as advance tax. Accordingly, credit for such amount of Rs. 1,62,194 has to be allowed as advance tax for the above assessment year." 3. The Assessing Officer rejected the petition of the assessee vide his letter No. 11-085-CT-3363/Inv.Cir-I(I)/Cal./332 dated 16-1-1991 stating therein that the assessee's request for rectification of the case by allowing the credit of the seized amount of Rs. 1,62,194 as advance tax and also for interest under section 244A on the refund cannot be allowed as there is no such clear provision in the Income-tax Act, for rectification of order under section 143(1)(a). 4. When the matter was carried in appeal before the CIT(A) the assessee submitted that there was a search operation in the premises of the assessee on 22-9-1988 an on 5-10-1988 an cash of Rs. 1,62,194 was seized by I.T. Department. It was further stated that an income of Rs. 8 lakhs was declared under section 132(4) at the time of search and in the course of the proceedings under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24,000 -------- 5,04,000 Deposited on 2-1-1989 as advance 3,41,000 -------- Existing tax liability by way of advance tax 1,63,000 Outstanding arrear tax for assessment year 1983-84 6,891 -------- TOTAL EXISTING TAX LIABILITY : 1,69,891 " 6. According to the CIT(A), a sum of Rs. 1,62,194 had, therefore, been retained by the Assessing Officer towards advance tax for assessment year 1989-90 to the extent of Rs. 1,55,303 for, first of all, there had to be an adjustment of outstanding arrear tax of Rs. 6,891 for assessment year 1983-84. Having regard to the Direct Tax Laws (Amendment) Act, 1987 to the effect that no statutory estimate of advance tax is required during the financial year relevant to the assessment year 1989-90 and following the request of the assessee vide its letter dated 2-1-1989, the CIT(A) came to the conclusion that a sum of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 143(1)(a) or income-tax charged under section 143(1A) are appealable through the provisions of section 154 only. He also drew our attention to the order of the CIT(A) dated 25-9-1992 against order under section 143(3) placed at page 10 of the paper book and stated that in this appellate order also, the CIT(A) has directed the Assessing Officer to allow credit for the sum of Rs. 1,62,194 as advance tax. On the basis of these arguments and contentions, the Id. counsel for the assessee urged that the order of the CIT(A) may be upheld as the mistake is very much apparent from the record. 9. We have carefully considered the rival submissions, relevant facts and material placed on the record. We have also gone through the Board circular and we find that this is not very relevant for deciding the issue under consideration. It is also pertinent to note that the CIT(A)'s order appealed against is order dated 29-7-1991 which was against intimation under section 143(1)(a)/ 154 and, therefore, the CIT(A)'s order dated 259-1992 against the order under section 143(3) is not relevant at all. 10. On consideration of the facts and circumstances of the case, we have come to the conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32(5) as it is held by the Madras High Court in the case of R. Ramachandra Naidu v. CIT [1976] 102 ITR 227 as under : "Having regard to the extensive powers conferred on the Income-tax Officer under section 132 of the Income-tax Act, 1961, and the far reaching consequences on the individual rights of the citizen, the Income-tax Officer is expected to deal with the matter of summary assessment under section 132(5) with such anxiety and fairness as would be required in order to avoid any unreasonable or unfair interference with the private rights of the individual." As this has not been done while passing the order under section 132(5), the order of the CIT(A) based on that order cannot be substained in the eyes of law. 11. Secondly, it is noticed that the CIT(A) has completely ignored the provisions of sections 132B and 132(6) of the Income-tax Act, 1961 while deciding the issue under consideration. For the sake of convenience, relevant part of section 132B is reproduced as under : " 132B. (1) The assets retained under sub-section (5) of section 132 may be dealt with in the following manner, namely:-- (i) The amount of the existing liability referred to in clause (iii ..... X X X X Extracts X X X X X X X X Extracts X X X X
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