COMMISSIONER OF INCOME TAX Vs. SUNIL CHANDRA GUPTA

JUDGEMENT

(1.) THE present appeal is filed by the department against the impugned order dated 28.02.2004, passed by the Income Tax Appellate Tribunal, Agra in I.T.A. No. 290/Agra/2013 for the assessment year 2010 -2011.

(2.) THE brief facts of the case are that on 10.03.2010, a search and seizure operation was conducted at the residence and business premises of the assessee. The bank lockers were also searched. During the search, a sum of Rs. 4,31,36,000/ - was found in cash and seized. The same was deposited by the department in its P.D. Account. The assessee has written a number of letters on 21.03.2010, 29.03.2010 and 05.07.2010 to all the authorities of department to adjust the cash seized against the advance tax for the assessment year 2010 -11. When the return for the assessment year under consideration was filed on 30.06.2010 then once again, the assessee made a request the A.O. to adjust the cash lying in the P.D. account against the advance tax, but the A.O. charged the interest under Section -234A, 234B & 234C of the Act. The said interest was deleted by the first appellate authority by observing that the cash was available with the department before filing the return and the same could have been adjusted against the demand of the advance tax. The Tribunal has confirmed the same by observing that the cash belongs to the assessee was already in the government account so there is no question to charge the interest and to this effect the Tribunal has discussed number of case laws to this effect. Still being not satisfied, the department has filed the present appeal.

(3.) THE learned counsel for the department also submitted that the cash seized can only be appropriated against the amount of any existing liability which does not include the advance tax. Accordingly, the cash seized during the course of search cannot be appropriated against the advance tax.