Income Tax Appellate Tribunal – Allahabad
Suresh Chandra Purwar (Huf), … vs Assistant Commissioner Of Income … on 31 August, 2021 IN THE INCOME TAX APPELLATE TRIBUNAL,
ALLAHABAD BENCH, ALLAHABAD
(THROUGH VIRTUAL COURT)
BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER
AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER
ITA No. 221/ALLD/2016
Assessment Year: 2011-12
Suresh Chandra Purwar(HUF) v. The Assistant Commissioner
68, Zero Road, Allahabad, U.P. of Income Tax,
Central Circle-1
Allahabad , U.P.
PAN:AALHS3075E
(Appellant) (Respondent)
Appellant by: Shri Ashish Bansal, Advocate
Respondent by: Shri Shantanu Dhamija , CIT, DR
Date of hearing: 27. 07. 2021
Date of pronouncement: 31.08. 2021
ORDER
PER SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER:
This appeal filed by the assessee has arisen from the appellate order dated
29.09.2016 passed by Ld. Commissioner of Income Tax(Appeals)-II,
Lucknow(hereinafter called “the CIT(A)”) , for assessment year(ay) 2011-12, the
appellate proceedings had arisen before learned CIT(A) from consequential order
dated 21.10.2015 passed by ld. Assessing Officer (hereinafter called ” the AO”) to
ITA No.221/ALLD/2016
Assessment Year: 2011-12
Suresh Chandra Purwar(HUF)
give effect to the order dated 23.09.2015 passed by Settlement Commission u/s
245D(4) of the Income-tax Act, 1961 (hereinafter called ” the AO”) . We have heard
both the parties through video conferencing mode through Virtual Court.
2. The grounds of appeal raised by assessee in memo of appeal filed with Income-
Tax Appellate Tribunal, Allahabad Bench , Allahabad(hereinafter called ” the
tribunal”) , reads as under:
“1. BECAUSE the “CIT(A)” has erred in law and on facts in upholding the
demand that had been raised against the “appellant”, in terms of order dated
23.10.2015 passed by the Asstt. CIT, Central Circle, Allahabad under section
143(3) read with section 245D(4).
2. BECAUSE the demand so raised against the “appellant”, which was made
up of
(Rs.)
(a) Tax Payable 89,20,544
(b) Interest under section 234A 1,05,785
(c) Interest under section 234B 57,12,930
was erroneous at the very face of it, as the same has been arrived at without
giving full credit to “taxes paid”, which had a bearing on computation of
interest under sections 234A & 234B also.
3. BECAUSE in any case, while giving direction to the Assessing Officer “to
allow credit for taxes paid after due verification” the “CIT(A)” should have held
that due and corresponding corrections in the quantum of interest levied under
section 234B and 234C should also be allowed.
4. BECAUSE interest under section 234B could not have been levied in the
instant case as gross demand of Rs. 1,07,09,544/- (before levy of interest in
different sections) stood overwhelmingly covered by cash aggregating Rs.
4,73,56,500/- as was under seizure as per particulars given below:-
SI. Panchnama Amount
No. dated (Rs.)
(i) 25.02.2011 26,50,000
(ii) 26.02.2011 4,13,07,500
(iii) 07.03.2011 22,49,000
(iv) 09.03.2011 11,50,000
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Suresh Chandra Purwar(HUF)
5. BECAUSE in view of large number of case laws (which provide for
adjustment of seized cash) the “CIT(A)” should have held that interest under
section 234B was not leviable in the instant case.
6. BECAUSE the “CIT(A)” has erred in law and on facts in holding that in
view of Explanation (2) below section 132B as had been inserted by the Finance
Act 2013 w.e.f. 1.6.2013 was applicable and cash under seizure could not have
been treated as payment of advance tax.
7. BECAUSE the said Explanation had no bearing, on the facts of the present
case and view taken by the “CIT(A)”, so as to deny the appellant’s claim for
cancellation of interest amounting to Rs. 57,12,930/- (under section 234B) is
wholly erroneous.
8. BECAUSE the order appealed against is contrary to facts, law and
principles of natural justice.”
3. The short question(s) which has arisen in this appeal filed by the assessee is with
respect to interest levied by Revenue u/s 234A and 234B of the 1961 Act. We have
heard in details both the rival parties through videoconferencing through Virtual
mode. The brief facts of the case are that the assessee is HUF and Shri Suresh
Chandra Purwar is claimed to be karta of the assessee. The search and seizure
operations u/s 132(1) of the 1961 Act was carried out by Revenue against Shri
Suresh Chandra Purwar and his family members and entities in the group, on
25.02.2011. The consequential order in this case was passed by AO on 21.10.2015 ,
to give effect to the order dated 23.09.2015 passed by Settlement Commission u/s
245D(4) of the 1961 Act . The appeal filed by the assessee before ld. CIT(A) was
dismissed by ld. CIT(A), vide appellate order dated 29.09.2016 which order of ld.
CIT(A) is an impugned order challenged before us. Cash amounting in aggregate to
Rs. 4,73,56,000/- was seized by Revenue from different tax-payers with in the group
during the course of search and seizure operations conducted by Revenue u/s
132(1). The claim of the assessee is that it made offer before Revenue for
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Suresh Chandra Purwar(HUF)
adjustment of cash seized during the course of search and seizure operations
against the tax-liability determined on assessment , and hence no interest be
leviable u/s 234B of the 1961 Act. The interest u/s 234B amounting to Rs.
57,12,930/- was levied by the AO vide orders dated 21.10.2015 , which was later
confirmed by ld. CIT(A) vide appellate order dated 29.09.2016, wherein contentions
raised by assessee were rejected by ld. CIT(A) . Aggrieved , the assessee has filed an
appeal with tribunal. The assessee was issued notice u/s 153A by the AO on
28.02.2013 directing assessee to file return of income for ay: 2011-12 , by
15.03.2013. The assessee did not file return of income for ay: 2011-12 in pursuance
to notice dated 28.02.2013 issued by the AO. Thereafter , the AO issued another
notice dated 15.07.2013 u/s 153A directing assessee to file return of income for ay:
2011-12 , by 22.07.2013. The assessee did not file return of income by 22.07.2013,
in pursuance to notice issued by AO dated 15.07.2013 u/s 153A of the 1961 Act. The
assessee , however, filed its return of income for ay: 2011-12 on 17.09.2013. The
assessee has claimed that Revenue did not supplied the copies of seized material
and statements recorded during the course of search despite request made by the
assessee and hence no fault could be attributable to assessee , thus the assessee is
claiming that it cannot be said that there is a delay on the part of the assessee in
filing of return of income and hence consequentially no interest u/s 234A of the
1961 Act can be levied against the assessee. The AO levied interest of Rs. 1,05,795/-
u/s 234A of the 1961 Act for ay: 2011-12 , vide consequential order dated
21.10.2015 passed by AO to give effect to order dated 23.09.2015 passed by
Settlement Commission under Section 245D(4) of the 1961 Act. The ld. CIT(A) later
confirmed the aforesaid order passed by the AO by dismissing appeal filed by the
assessee. Aggrieved , the assessee has filed an appeal with tribunal. The assessee
declared taxable income of Rs.59,27,677/- in the return of income filed on
17.09.2013 for ay: 2011-12, which included income of Rs. 50,33,000/- which is
purported to be towards income declared owing to high denomination currency
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Suresh Chandra Purwar(HUF)
notes of Rs. 1000/- each which as per assessee’s letter dated 17.09.2013 ( this letter
is claimed by assessee to have accompanied return of income ), remained un-
explained , which was part of cash amounting to Rs. 4,13,07,500/- seized on
25.02.2011 from residential premises situated 68, Zero Road, Allahabad, U.P. (Rs.
50,33,000/- high denomination currency notes of Rs. 1000/- each seized from first
floor of residential premises at 68, Zero Road, Allahabad, U.P. occupied by Shri
Suresh Chandra Purwar and his wife for their residence ) . The name of the assessee
being a separate tax unit -HUF is not appearing in inventory of cash found and
seized from the residential premises at 68, Zero Road, Allahabad, U.P. on 25.02.2011
The assessee has claimed that Shri Suresh Chandra Purwar is the karta of the
assessee HUF.The amount of tax and interest aggregating to Rs. 19,15,050/-
remained unpaid by the assessee in the return of income filed on 17.09.2013. It is
pertinent to mention that the assessee computed aggregate interest of Rs.
3,75,496/- which the assessee computed in return of income filed with Revenue was
payable by it (although the assessee did not bifurcated the amount of interest
payable under different provisions of the 1961 Act viz. 234A, 234B , 234C etc.) in the
return of income filed on 17.09.2013. In the letter dated 17.09.2013 claimed by
assessee to be accompanying this return of income filed by assessee on 17.09.2013,
the assessee sought adjustment of the cash seized during search operations , against
the liability computed to be payable by assessee itself towards tax and interest
computed in the return of income filed with Revenue on 17.09.2013 , for the
impugned ay:2011-12 as well other ay’s 2006-07 to 2010-11. The assessee ,
thereafter, initiated proceedings before Settlement Commission by filing an
application on 19/20.03.2014 . The assessee filed revised computation of income
before Settlement Commission declaring income of Rs. 85,82,279/- , which included
additional income declared before Settlement Commission in SOF to the tune of Rs.
26,54,601/-. The proceedings before Settlement Commission culminated into an
order dated 23.09.2015 passed by Settlement Commission u/s 254D(4) of the 1961
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Act, wherein the income of the assessee was settled at Rs. 3,51,45,385/- for
impugned ay: 2011-12. It is pertinent to mention that the income as per return of
income filed by the assessee with AO, was Rs.59,27,677/-, while the additional
income offered by assessee in the SOF filed before Settlement Commission was Rs.
26,54,601/- and further additions were made by Settlement Commission during
proceedings u/s 245D(4) was to the tune of Rs.2,65,63,107/. While making
additions to the income of the assessee during proceedings u/s 245D(4), the
Settlement Commission made , inter-alia, additions to the tune of Rs. 2,60,49,000/-
as undisclosed income in the hands of the assessee for ay: 2011-12 towards
unexplained cash found from residence premises and lockers, rejecting the
contentions of the assessee. There were certain further additions to the income of
the assessee for ay: 2011-12 made by Settlement Commission vide order dated
23.09.2015 passed u/s 245D(4). The AO then passed an consequential order dated
21.10.2015 to give effect to the order dated 23.09.2015 passed by Settlement
Commission u/s 245D(4) of the 1961 Act, computing a sum of Rs. 1,47,39,270/-
being further payable by assessee towards tax and interest u/s 234A and 234B of
the 1961 Act. The assessee filed rectification petition u/s 154 of the 1961 Act on
13.11.2015 with AO against the order dated 21.10.2015 passed by AO raising
challenge to leviability of interest u/s 234A and 234B of the 1961 Act , which
rectification petition u/s 154 stood dismissed by AO vide orders dated 17.11.2015.
The assessee then filed an appeal with ld. CIT(A) on 15.12.2015 against the
consequential order dated 21.10.2015 passed by the AO to give effect to the order
dated 23.09.2015 passed by Settlement Commission u/s 245D(4), which appeal
stood dismissed by ld. CIT(A) vide appellate orders dated 29.09.2016. The assessee
has claimed that it filed letter dated 17.09.2013 along with return of income filed on
17.09.2013, which is placed in paper book at page number 57-63 . The assessee is
also relying on the letter dated 06.04.2011 which was claimed to be filed by Shri
Suresh Chandra Purwar before the Director of the Income-tax(Investigation) ,
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Suresh Chandra Purwar(HUF)
Kanpur, in which it is claimed that offer to adjust cash seized during search
operations against the tax liability was made(page 64-75/paper book). Shri Suresh
Chandra Purwar is claimed to be karta of the assessee, as well said Shri Suresh
Chandra Purwar is separately assessed in the capacity of individual. On the strength
of these two aforesaid letters , the assessee is claiming that no interest be charged
under the provisions of Section 234B of the 1961 Act, while it is also prayed that it is
the department who failed to provide seized documents and statements recorded
during the search operations in timely manner ,despite request made by assessee,
which led to delay in filing of return of income and no fault can be attributed to
assessee , thus it cannot be said that the assessee delayed the filing of return of
income and consequently Revenue cannot penalize assessee by charging interest
u/s 234A of the 1961 Act . We have carefully gone through the entire material
placed before the tribunal. It is observed from perusal of the para 8 of the said letter
dated 06.04.2011 claimed to have been filed by Shri Suresh Chandra Purwar before
the Director of Income-tax(inv.) , Kanpur wherein it was claimed by Shri Suresh
Chandra Purwar that the said cash of high denomination currency notes of Rs.
1,000/- each aggregating to Rs. 50,33,000/- found and seized belonged to him . It
was claimed that the said sum was received over a period of years under various
heads and on a number of occasions. It was claimed by Shri Suresh Chandra Purwar
that the said amount of Rs. 50,33,000/- did not attract taxation , looking to the
period of requisition as well as nature thereof. It was also claimed in para 12 of the
aforesaid letter dated 06.04.2011 that the said cash seized was from realizations
from business activities which had been discontinued after the death of father in
1996 and realizations on account of sale of agricultural land/land under cultivation
of his father during his life time and sale of agricultural land as inherited by
assessee’s wife after death of his mother. But later it appeared that the assessee
declared the said amount as additional income in the return of income filed with
Revenue , on 17.09.2013, although initially claim was made by Shri Suresh Chandra
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Purwar before Director of Income-tax(Inv.), Kanpur vide letter dated 06.04.2011
that said amount is not taxable. Similarly, for remaining cash of Rs. 3,62,74,500/- , it
was claimed in the aforesaid letter dated 06.04.2011 that the said cash belonged to
parents of Shri Suresh Chandra Purwar, while Settlement Commission rejected all
contentions of the assessee and held that Rs. 2,60,49,000/- cash found and seized
from residence and lockers to be income of the assessee for ay: 2011-12 , in the
order passed u/s 245D(4) of the 1961 Act. Shri Suresh Chandra Purwar in the said
letter dated 06.04.2011 at para 16 stated that as soon as he is provided with the
copies of seized material and statements, he shall make a fair and binding estimate
of his income and then after adjustment of cash seized against tax liability, the
balance cash should be returned to him . Thus, the offer was made by Shri Suresh
Chandra Purwar to adjust the cash seized against the tax liability arising out of the
correct and binding estimate of the tax liability made by him and other taxpayers in
the group . It is also observed that in para 20 of the said letter dated 06.04.2011,
Shri Suresh Chandra Purwar stated that the assessee Suresh Chandra Purwar(HUF)
is a separate taxable entity engaged in the business of dealing in ‘compounds’ and
‘grinded masala’ . It is claimed that the assessee namely Suresh Chandra
Purwar(HUF) was never searched by Revenue on 25.02.2011 , as there was no
warrant of authorization issued by Revenue against this assessee. However, it is also
stated in the said letter dated 06.04.2011 that some of the warrant of authorization
did have the name ‘Hari Sons(India) Products , which is a name given to business
entity of ‘Suresh Chandra Purwar(HUF), and it is claimed that said Hari Sons(India)
Products cannot be called as a person as defined u/s 2(31) of the 1961 Act. Now,
coming to letter dated 17.09.2013 which is claimed to have been filed by assessee
before the AO along with the return of income filed on 17.09.2013, it is claimed that
there is no warrant of authorization issued by the Revenue in the name of the
assessee viz. Suresh Chandra Purwar, HUF, which it is claimed is a separate taxable
entity. Thus, it is claimed that the assessee was never subjected to search and
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seizure operations conducted by Revenue , u/s 132(1) of the 1961 Act. Thus, legal
challenge was made to notice issued by AO u/s 153A of the 1961 Act , to be not
enforceable in the eyes of law. Thereafter, the assessee submitted, without
prejudice, that there was a delay in providing of seized material and statements to
the assessee by Revenue which material was provided in parts and the process
continued till June 2013 , which has led to delay in analyzing the said
documents/statements to arrive at income, and hence it could not be said that
return of income filed in pursuant to notice u/s 153A are delayed returns. It was
also claimed that the karta of the assessee Shri Suresh Chandra Purwar is suffering
from serious disease, for which he was operated upon which also led to delay in
analyzing of the seized material and statements, hence delay in filing of returns.It is
claimed in this letter dated 17.09.2013 claimed to be filed by assessee along with
return of income, that out of cash seized of Rs. 4,73,63,050/- , the necessary
explanations were given with regard to cash of Rs. 4,23,30,050/- , while only
unsubstantiated cash was to the tune of Rs. 50,33,000/- , which was offered to
taxation by assessee as additional income in the return of income filed for ay: 2011-
12. However, even Settlement Commission rejected the contentions of the assessee
and brought to tax cash seized of Rs. 2,60,49,000/- from residence and lockers as
additional income of the assessee for the impugned ay: 2011-12, vide order passed
u/s 245D(4). The assessee, in this letter dated 17.09.2013, stated that the tax and
interest liability to the tune of Rs. 38,67,145/- arising out of tax and interest
payable, for ay: 2006-07 to 2011-12 be adjusted against the cash seized during
search operations , while request was made to refund the amount of excess cash
seized of Rs. 4,34,89,355/-. It was also submitted that no interest be levied under
various provisions of Income-tax Act, 1961 , as the cash was seized since 2011.
Under these circumstances and after considering entire material on record, we are
of the considered view , that the assessee is not entitled for complete relief on the
interest payable u/s 234B of the 1961 Act , as first of all the assessee was disputing
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Suresh Chandra Purwar(HUF)
the search conducted by Revenue u/s 132(1) of the 1961 Act against it and
secondly, as per material before us, there is no material to suggest that any estimate
of income was filed by the assessee before the competent authorities immediately
after search operations , even including the high denomination currency notes of Rs.
1000/- each aggregating to Rs. 50,33,000/- as its undisclosed income, rather , Shri
Suresh Chandra Purwar was justifying even the aforesaid high currency notes as not
been taxable , in letter dated 06.04.2011(para 8 and 12) wherein it was claimed that
the said sum was received over a period of years under various heads and on a
number of occasions. It was claimed by Shri Suresh Chandra Purwar that the said
amount of Rs. 50,33,000/- did not attract taxation , looking to the period of
requisition as well as nature thereof. It was also claimed in para 12 of the aforesaid
letter dated 06.04.2011 that the said cash seized was from realizations from
business activities which had been discontinued after the death of father in 1996
and realizations on account of sale of agricultural land/land under cultivation of his
father during his life time and sale of agricultural land as inherited by assessee’s
wife after death of his mother. Thirdly, the assessee did not file declaration of true
income , rather the Settlement Commission rejected all the contentions of the
assessee and further brought to tax, inter-alia, cash seized from residence and
lockers aggregating to Rs. 2,60,49,000/- in the hands of the assessee. Our view is
further strengthened wherein the assessee while filing return of income on
17.09.2013, computed interest of Rs. 3,75,496/- payable by it. However, at this stage
it offered for adjustment of tax and interest liability of Rs. 38,67,145/- against cash
seized during search operations. Thus, as late as on 17.09.2013 , when the assessee
filed its return of income on 17.09.2013, the assessee has owned up cash seized of
Rs. 50,33,000/- being high denomination currency notes of Rs. 1000/- each as its
additional income for ay: 2011-12 , and the assessee sought adjustment of cash
seized against its liability to tax and interest , to the tune of Rs. 38,67,145/- for ay:
2006-07 to 2011-12, thus, so far the liability to this effect and corresponding
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Suresh Chandra Purwar(HUF)
quantum relevant to ay:2011-12 is concerned , no interest u/s 234B can be levied
beyond this point viz. 17.09.2013, as there was sufficient cash lying with Revenue on
account of cash seized during search operations to be adjusted against liability so
determined towards tax and interest as computed in return of income filed on
17.09.2013 . However, the assessee shall be liable to pay interest u/s 234B on tax so
computed on the income so declared in return of income filed on 17.09.2013, till the
date of filing of return of income on 17.09.2013. The AO is directed to compute
liability of interest u/s 234B to this effect. Now proceeding further, the assessee
while filing application with Settlement Commission on 19/20th March 2014 offered
additional income of Rs. 26,54,601/- , and the assessee has claimed that it
discharged its entire tax and interest liability , aggregating to Rs. 40,09,000/- , by
making payments towards tax and interest on 18.03.2014. The assessee has
claimed that it was not given appropriate credit for payment of taxes , and form no
26AS/challans are produced before tribunal, the AO shall verify and give credit of
payment of appropriate taxes claimed to be so paid by assessee on 18.03.2014, after
due verification. Then, obviously if taxes stood paid on this date viz. 18.03.2014 as
claimed by assessee even on additional income offered in SOF filed with Settlement
Commission , no further liability u/s 234B can be fastened beyond this point of time
viz. 18.03.2014 to the extent the taxes stood paid(which is subject to verification by
AO). However, the assessee shall be liable to pay interest u/s 234B on tax so
computed on the additional income so declared in SOF filed with Settlement
Commission on 19/20.03.2014, till the date of payment of tax on 18.03.2014.
Reference is drawn to provisions of Section 234B(2A)(a) of the 1961 Act .The AO is
directed to compute liability of interest u/s 234B to this effect. Now proceeding
further, thereafter, the Settlement Commission passed an order u/s 245D(4), dated
23.09.2015 bringing to tax additional income , as declaration made by assessee of its
income before Settlement Commission ,was found by Settlement Commission to be
not correct and additional income was brought to tax by Settlement Commission ,
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and since this liability was fastened in September 2015, the assessee will be liable
to pay interest u/s 234B till the order was passed by Settlement Commission in
September 2015 bringing to tax additional income, owing to untrue declaration of
income filed by assessee before Settlement Commission. Reference is drawn to
provisions of Section 234B(2A)(b) of the 1961 Act. The AO is directed to compute
liability of interest u/s 234B to this effect . So far as the contentions of the Revenue
that there was amendment by Finance Act, 2013 , w.e.f. 01.06.2013 wherein
Explanation 2 to Section 132B was inserted and cash seized could not have been
adjusted against advance tax liability , the said amendment is held to be prospective
in nature and not applicable to cases prior to 01.06.2013. The SLP filed by
Department against judgment of Hon’ble Punjab and Haryana High Court in the case
of CIT v. Cosmos Builders and Promoters Limited((2016)76 taxmann.com
374(P&H)) and Hon’ble Allahabad High Court in the case of Sunil Chandra Gupta
(2016) 76 taxmann.com 372(Alld) , have been dismissed by Hon’ble Supreme Court
( (2016) 76 taxmann.com 377(SC) ; (2016) 76 taxmann.com 372(SC)) , which is
itself accepted by Revenue vide CBDT Circular No. 20/2017 in F.No.
279/Misc/140/2015/ITJ , dated 12.06.2017 . Presently, we are concerned with ay:
2011-12 and search and seizure operations were conducted by Revenue u/s 132(1)
of the 1961 Act, on 25.02.2011. This contention of Revenue to hold Explanation 2 to
Section 132B of the Act, which was inserted by Finance Act, 2013 w.e.f. 01.06.2013,
to be retrospective is rejected and we hold that said amendment is prospective. So,
far as chargeability to interest u/s 234A is concerned, clearly the assessee has not
filed return of income in time rather the assessee was disputing the search carried
on by the Revenue itself , the onus is on the assessee to keep and maintain its record
of income as it is the assessee who is in know of its own affairs and the assessee
cannot blame Revenue for its own faults in not keeping proper and true record of its
own income. The onus and burden is on the assessee to file its return of income in
time , which the assessee cannot shift to Revenue merely because an intervening
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event by way of search and seizure operations have taken place u/s 132(1) of the
1961 Act. Thus, we are not inclined to interfere with the orders passed by lower
authorities so far as chargeability of interest u/s 234A is concerned, which we
uphold. Thus, the appeal of the assessee is partly allowed. We order accordingly.
4. In the result, appeal filed by the assessee with tribunal in ITA No.
221/Alld./2016 for ay: 2011-12 is partly allowed
Order pronounced on 31 /08/2021 at Allahabad.
Sd/- Sd/-
[VIJAY PAL RAO] [RAMIT KOCHAR]
JUDICIAL MEMBER ACCOUNTANT MEMBER
DATED: 31/08/2021
Copy forwarded to:
1. Appellant -Suresh Chandra Purwar, HUF, 68, Zero Road, Allahabad
2. Respondent -The Assistant Commissioner of Income-tax, Central Circle-1,
Allahabad, U.P.
3. CIT(A) –II, Lucknow,U.P.
4. CIT, Allahabad, U.P.
5. DR -The CIT(DR) , Allahabad, U.P.
By order
Assistant Registrar
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