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Income Tax Appellate Tribunal, DELHI BENCH ‘G’, NEW DELHI
ORDER
Per N. K. Saini, AM:
This is an appeal by the department against the order dated 28.11.2014 of ld. CIT(A)-3, Gurgaon.
Following grounds have been raised in this appeal: “(i) Whether on the facts and in the circumstances of the case the ld. Cit(A) was right in allowing the appeal of the assessee not appreciating the provisions of section 132B of the Act. (ii) Whether on the facts and in the circumstances of the case, the ld. CIT(A) was right in allowing the appeal of the assessee in the absence of any liability created u/s 210 of the Act.”
3. During the course of hearing, the ld. Counsel for the assessee submitted that an identical issue having similar facts has been decided by the ITAT Delhi
Sushil Kumar Gupta Bench “A”, New Delhi in the case of ACIT, Circle-52(1), New Delhi Vs Shri Anil Kumar Gupta who is the brother of the assessee and the search was conducted on the same date wherein vide order dated 04.05.2018, the departmental appeal on the same issues was dismissed (copy of the said order was furnished which is placed on record).
The ld. CIT DR although supported the order of the AO but could not controvert the aforesaid contention of the ld. Counsel for the assessee.
After considering the submissions of both the parties, it is noticed that an identical issue has been adjudicated by the ITAT Delhi Bench “A”, New Delhi in the case of ACIT, Circle-52(1), New Delhi Vs Shri Anil Kumar Gupta wherein the departmental appeal was dismissed and the relevant findings have been given in paras 6 & 7 which read as under: “6. We have heard the ld. DR and have gone through the entire material available on record. During the course of search, cash was seized of Rs.1,40,82,500/- which was lying with the Income-tax Department. The assessee filed an application on 09.03.2009 before the DDIT (Inv.) for adjustment of the seized cash against the tax liability for the assessment year 2009-10.Therefore, the cash may be treated as advance tax paid by the assessee and thus, there was no revenue loss. This issue has been properly dealt with by the ld. CIT(A) in the impugned order, which reads as under : “6.1. I have considered the assessee’s submission as well as the impugned order. It is assessee’s contention that the cash seized of Rs.74,86,100/- at the time of search conducted on 05.03.2009 was not allowed to be adjusted against the demand for the instant year, i.e., A.Y. 2009-10. This was contended to be despite his specific request for adjustment against such tax liability. This letter is dated 9.03.2009 addressed to the DDIT(Inv.)-II, Gurgaon. There is a stamp of receipt dated 09.03.2009. There is another letter addressed to the CIT, Central, Ludhiana with copy of ACIT, CC-II, Faridabad purportedly dated 21.01.2011
Sushil Kumar Gupta requesting for the adjustment against the liability determined of Rs.89,99,293/-. Copies of these letters were filed with his written submissions. So it is has been contended that the A.O. instead adjusted the seized cash against the demands for AY 2005-06, 2006-07 and 2007-08. The other contention is that he was no afforded opportunity u/s. 245 regarding the adjustments made by the A.O. whether it was on account of seized cash or the refunds. However, the submission of the assessee that he had requested for the adjustment in the statement recorded u/s. 132(4) does not appear to be the case.
After considering the materials on record, it is quite apparent that the assessee had requested for adjustment of seized cash before the tax authorities. He relied decision of the jurisdictional High Court in CIT vs. Arun Kapoor (2011) 334 ITR 351 (P&H), upheld the action of adjustment of seized cash. In another decision of jurisdictional High Court in CIT vs. Ashok Kumar (2011) 334 ITR 355 (P&H), it was held as under at para 5 that is reproduced: “In CIT vs. Arun Kapoor, IT Appeal No. 149 of 2003 decided on 27 July, 2010, this court had occasion to consider similar issue where it has been held that the assessee is entitled to adjustment of seized cash amount towards advance tax liability from the date of making the application in that regard. In the present case, the assessee had made request of adjustment of the advance tax liability of Rs.3,14,312 against the seized amount of Rs.5,90,000/- on 28thAug. 1989.Since the first installment of Advance Tax was payable on 15th Sept. 1989 and the request for adjustment having been made on 28th Aug., 1989 and reminder on 12th Sept. 1989, no interest was exigible under ss. 234A and 234B of the Act. The Tribunal has rightly held that the assessee was entitled to adjustment of the said amount and no interest could be charged on that basis. Therefore, no fault could be found with the approach adopted by the tribunal.” (emphasis assigned) In other words, the assessee was entitled to adjustment of seized cash. The A.O. while giving appeal effect shall ascertain from the Sushil Kumar Gupta assessment record, giving credence to the application made by the assessee for adjustment of seized cash. After doing the exercise, if there is still shortfall in the taxes to be paid, the interest may be recomputed and challan issued to the assessee for payment accordingly.
7. In view of the above findings of the ld. CIT(A) we find that the ld. CIT(A) has made good reasoned order and it needs no interference for want of any contrary material on record. We, therefore, find no infirmity in the impugned order on this count. Accordingly, the appeal of the Revenue deserves to be dismissed.”
Since, the facts of the present case are similar to the facts of the case of ACIT, Circle-52(1), New Delhi Vs Sh. Anil Kumar Gupta (supra). So, respectfully following the aforesaid referred to order, we do not see any merit in this appeal of the department.
In the result, the appeal of the department is dismissed. (Order Pronounced in the Court on 31/05/2018)