- (1.) THIS writ petition has been filed by the petitioner seeking for a direction upon the Assistant Commissioner of Income Tax, Central Circle -1, Dhanbad Assessing Officer to give credit of the amount of Rs.27,00,000/ - with effect from 28.02.2009 i.e. the date of its seizure from the petitioner under Section 132(1) of the Income Tax Act, 1961 for the purpose of calculating the amount of interest under Sections 234A, 234B and 234C of the Act in the order dated 30.03.2012 passed by the Assessing Officer keeping in view the judgment of Division Bench of this Court in Mahesh Choudhary's case (Tax Case No. 11 of 2001 dated 02.11.2012) and other judgments of the Hon'ble Supreme Court.
(2.) BRIEF facts are that a search and seizure operation was conducted in the business and residential premises of the petitioner on 28.02.2009. During the course of search, cash amounting to Rs.27,00,000/ - was seized. Subsequently, a notice under Section 142(1) dated 14.12.2009 was issued and the assesse filed return of the income related to the assessment year 2009 -10 on 30.07.2010 disclosing the total income of Rs.3,05,73,504/ - including the additional income of Rs.2,79,50,000/ -. The Assessing Officer determined the total income as Rs.7,74,44,806/ - as against the return income of the assesse of Rs.3,05,73,504/ -. Being aggrieved, the assesse had filed appeal before the CIT (Appeals), Dhanbad and vide order dated 28.09.2011, the same was partly allowed. Still aggrieved, the assesse preferred appeal before Income Tax Appellate Tribunal, Circuit Bench, Ranchi and the ITAT vide order dated 24.02.2012 allowed the appeal in part. As against the order of the ITAT, Revenue is said to have preferred appeal before this Court in Tax Case Appeal No. 25 of 2012 and the same has been admitted and pending.
(3.) AFTER the appeal was partly allowed by the ITAT, the assesse has sent letter on 06.12.2012 and again on 08.01.2013 requesting the Department to treat the amount of Rs.27,00,000/ - seized during the course of search as advance tax from the date of seizure itself. Since no order has been passed on the said application dated 06.12.2012 and also the letter dated 08.01.2013, the assesse has preferred this writ petition. The learned Senior Counsel, Mr. B. Poddar, appearing for the petitioner has submitted that the provisions of the Act and the various judgments of the Hon'ble Supreme Court and also the judgment in Mahesh Choudhary's case (Tax Case No. 11 of 2001 dated 02.11.2012) clearly stipulate that retained amount required to be given adjustment against the then liability of the assesse, which has been quantified subsequently by the order of assessment/reassessment and if any excess amount is retained by the Revenue Department, interest shall also be paid on it to the assesse. It is therefore submitted that the seized amount of Rs.27,00,000/ - was with the respondent Department and the same was adjusted against the tax payable by the petitioner on 30.03.2011 after the assessment was completed and the same ought to have been taken as advance tax with effect from the date of seizure i.e. 28.02.2009. In this regard, the learned Senior Counsel has placed reliance upon Mahesh Choudhary's case (Tax Case No. 11 of 2001 dated 02.11.2012) and also the judgments (Sandvik Asia Ltd. vs. Commissioner of Income Tax, 2006 280 ITR 643 ), ( Commissioner of Income Tax vs. Pandurang Dayaram Talmale, 2004 135 Taxman 193), (Commissioner of Income Tax vs. K.K.Marketing,2005 278 ITR 596 ), (Satpal D. Agarwal HUF vs. ACIT,1998 62 TTJ 98) and (Vipul D.Doshi vs. ACIT,2001 118 Taxman 30) and also the Board's Circular No.14(XL -35) dated 11.04.1955.;