Treat seized cash as an advance tax during search

[Vikas Aggarwal]

Respected Sir,

Please help me in the following issues.

1. Search initiated on end of march2011in the premises of an assessee & seized cash of Rs. 45 lakh, asessee wrote a letter to department on august, 2011 & request to treat seized cash as an advance tax for the FY 2010-11. and show his seized cash as an advance tax in our computation, can department allowed to treat seized cash as an advance tax, if yes (please provide any case law (delhi high court/supreme court, if any) in this regard).

2. What is the situation if assessee booked a cash sale of Rs. 45 lakh in th above case.

 

Regards,

CA Vikas Aggarwal.

[Joginder Pal]

I attempt to reply this question in spite of the fact I am not expert on Income Tax Laws.

The amount seized during raids means the deparment has the reasonable belief that this cash is liable to confiscation as the amount on which Income Tax has not been paid. This matter will be adjudicated by the jurisdictional Income Tax authority, either the cash will be onfiscated and in that case the ownership will shift to the government or will be returned to the assessee if the case is not proved.

Therefore till adjudication, the status of this seized cash can not be changed to Advance Tax.

[CASeetharaman KC]

Please refer to Section 132B of the Income tax Act , 1961 which provides for application of siezed assets. The proviso to this section states as follows:

Provided that where the person concerned makes an application to the Assessing Officer within thirty days from the end of the month in which the asset was seized, for release of asset and the nature and source of acquisition of any such asset is explained] to the satisfaction of the Assessing Officer, the amount of any existing liability referred to in this clause may be recovered out of such asset and the remaining portion, if any, of the asset may be released, with the prior approval of the Chief Commissioner or Commissioner, to the person from whose custody the assets were seized:

It would be appropriate to make an application to the assessing officer within 30 days from the end of the month in which the asset was siezed for release of the asset and only if the same is released it can be appropriated as suggested by you

AI Summary

Seized cash as advance tax requires release under Section 132B and assessing officer satisfaction before appropriation. Seized cash cannot be treated as advance tax until adjudication and release procedures under Section 132B are followed. The person from whose custody assets were seized must apply within thirty days from the end of the seizure month; if the Assessing Officer is satisfied and required approvals are obtained, liabilities may be recovered from the asset and any remainder released, otherwise confiscation may occur.