Shri Binod Kumar Jain, Kolkata v. ACIT, Circle-44, Kolkata, Kolkata

ITSSA 32/KOL/2009 | misc
Pronouncement Date: 30-03-2012

Appeal Details

RSA Number 3223516 RSA 2009
Assessee PAN ACTPJ7592D
Bench Kolkata
Appeal Number ITSSA 32/KOL/2009
Duration Of Justice 2 year(s) 6 month(s) 7 day(s)
Appellant Shri Binod Kumar Jain, Kolkata
Respondent ACIT, Circle-44, Kolkata, Kolkata
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 30-03-2012
Appeal Filed By Assessee
Bench Allotted C
Tribunal Order Date 30-03-2012
Assessment Year misc
Appeal Filed On 22-09-2009
Judgment Text
C IN THE INCOME TAX APPELLATE TRIBUNAL BENCH- C CALCUTTA () BEFOR E SHRI N. VIJAYA KUMARAN JUDICIAL MEMBER. /AND .'#. $% SHRI C.D.RAO ACCOUNTANT MEMBER IT (SS) A NO. 32/KOL/2009 A.Y : BLOCK PERIOD 01.4.86 TO 1.1.97 SHRI BINOD KUMAR JAIN PAN : ACTPJ 7592D A.C.I.T CIR.44 KOLKATA (&' / APPELLANT ) - - VERSUS -. ()*&'/ RESPONDENT ) (&' /APPELLANT / SHRI B.C. JAIN LD.AR ()*&' / RESPONDENT: / SHRI D.ROY LD.DR - #% /DATE OF HEARING : 26-03-2012 ./ - #% /DATE OF PRONOUNCEMENT: 30-03-2012 $0 / ORDER SHRI N. VIJAYA KUMARAN JUDICIAL MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XXX KOLKATA DATED 11-05-20 09 THE ASSESSMENT YEAR/BLOCK PERIOD INVOLVED IS 01-04-86 TO 01-01-97. 2. THE CLAIM OF THE ASSESSEE IS THAT THE ASSESSING OFFICER HAS WRONGLY GRANTED LESSER INTEREST TO THE ASSESSEE AT 8%S WHEREAS ACCORDING TO THE ASSESSEE HE IS ENTITLED TO 15%. FURTHER AS PER SECTION 244A INTEREST WAS NOT ALLOWED BY THE ASSESSING OFFICER TILL THE DATE OF GRANTING REFUND. .3 THE FACTS RELEVANT ARE THAT A SEARCH WAS CONDUCT ED IN THE ASSESSEES CASE. IN VIEW OF SEARCH ACTION CASH WAS SEIZED IN THE COURSE OF SEA RCH. SUBSEQUENTLY SEIZED CASH WAS ADJUSTED AGAINST THE DEMAND RAISED. U/S 264 THE APPEAL BY TH E ASSESSEE THE DEMAND WAS REDUCED. RESULTANTLY SEIZED CASH ADJUSTED AGAINST THE DEMAND RESULTED IN REFUND.. THE REFUND WAS GRANTED IT(SS) A NO.32/KOL/09-C-NVK 2 TO THE ASSESSEE. LATER INTEREST @8% IS GRANTED TO THE ASSESSEE U/S. 132B(4). AT THIS STAGE ASSESSEE CONTENDS THAT THE INTEREST IS TO BE GRANTE D AT 15%. THIS IS THE DISPUTE. 4. WE HAVE HEARD THE LEARNED COUNSEL FOR THE ASSES SEE AND THE LEARNED DR AT LENGTH AND HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) CORRECTLY HELD THAT PROVISIONS OF SECTION 244A. AR E APPLICABLE TO THE REFUND ARISING OUT OF TAX PAID IN RESPONSE TO DEMAND NOTICE ISSUED U/S. 156. THE LEARNED COUNSEL FOR THE ASSESSEE THEREFORE MADE HIS STATEMENT AT BAR THAT ASSESSEE NEVER REQUESTED THE DEPARTMENT TO ADJUST SO- SEIZED CASH TOWARDS THE TAX DUE. WHEN THAT BEING TH E POSITION THE PROVISIONS OF SECTION 244A ARE NOT APPLICABLE TO THE REFUND. HENCE WE SEE NO JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IN CON FIRMING THE SAME. BY WAY OF SAME FINDING THE ASSESSEE CLAIMED INTEREST ON INTEREST A LSO WE FIND THAT ASSESSEE IS ALSO NOT ENTITLED THAT IT IS A REFUND WHICH IS NOT ARISING OUT OF TA X PAID BUT THE REFUND AROSE TO THE ASSESSEE OUT OF THE CASH SEIZED IN COURSE OF SEARCH U/S.132 AND AT THE COST OF REPETITION NO AMOUNT OF TAX WAS PAID IN RESPONSE TO DEMAND NOTICE ISSUED U/S.156 O F THE ACT. HENCE ASSESSEE IS NOT ENTITLED TO ANY RELIEF AS CLAIMED IN HIS GROUNDS OF APPEAL AND THE DECISION AS RELIED ON BY THE ASSESSEE IN THE CASE OF CIT VS. ISLAMIC ACADEMY EDUCATION REPOR TED IN (2011) 239 CTR 209(KAR). THE CASE IS QUITE DISTINGUISHABLE AS IN THE CITED CASE THAT TAX PAYABLE WAS ADJUSTED ONLY AT THE REQUEST OF THE ASSESSEE FROM THE AMOUNT SEIZED. THE DECISION AS RELIED ON BY THE LEARNED COUNSEL FOR THE ASSESSEE IN THE CASE OF SANDVIK ASIA LTD VS . CIT [2006] 280 ITR 643(SC)S IS ALSO ON THE SAME RATIO. HENCE IT IS QUITE DISTINGUISHABLE AND NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. THE GROUNDS RAISED BY THE ASSESSEE ARE DISMI SSED. 5. IN THE RESULT ASSESSEES APPEAL IS DISMISSED. 1 $0 %$ 2 3 14 THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 30 .-03-2012 SD/- SD/- ( .'#. $% ) ( C.D.RAO ACCOUNTANT MEMBER) ( ) ( N.VIJAYA KUMARAN JUDICIAL MEMBER ) DATED: 30.-03-2012 IT(SS) A NO.32/KOL/09-C-NVK 3 *PP SR.PS/ $0 - )55 6$// COPY OF THE ORDER FORWARDED TO: 1. &' /APPELLANT- SHRI BINOD KUMAR JAIN 37/1 SHBTOLLA ST . KOL-7. 2 )*&' / RESPONDENT : A.C.I.T CIR-44 40 STRAND ROAD KOLK ATA-1. 3. 50 /CIT 4. 50 ()/ CIT(A) 5. <53 )5/ DR KOLKATA BENCHES KOLKATA [* )5/ TRUE COPY] $0/ BY ORDER ASSTT. REGISTRAR