TaxTMI 
TaxTMI 
TaxTMI 
2024 (11) TMI 305
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....) was without DIN and therefore 'non-est' as per CBDT Circular dated 14.08.2019. The assessee states "though this issue was not part of appeal before Hon'ble ITAT, it is apparent from record and visible to the Hon'ble ITAT so it should have suo motu treated the order non- est". Relying upon Hon'ble Supreme Court decision in NTPC Ltd. 229 ITR 383, Ld. AR submitted that this issue is jurisdictional and can be raised at any stage; therefore it can be raised in present M/A even though it was not a part of original appeal. Therefore, the ITAT is requested to rectify this mistake and declare the order of first-appeal passed by CIT(A) as 'non-est'. Replying to this, Ld. DR for revenue expressed a strong objection. He submitted that the provision of section 254(2) permits ITAT to rectify its own order with a view to rectify 'any mistake apparent from record' and therefore the scope and ambit of section 254(2) is very limited and it cannot be stretched to accommodate what the assessee is claiming. He submitted that if the assessee was aggrieved by CIT(A)'s order not having DIN, it was for the assessee to raise this issue either in Form No. 36 or during hearing of original appeal by ITAT. Bu....
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....ncome filed subsequently and therefore the AO, while framing assessment, made an addition of short- disclosure of Rs. 2,40,000/- [Rs. 49,99,000 (-) Rs. 47,59,000]. The assessee's claim to justify short-disclosure was that it belonged to his wife's savings and therefore protected by aforesaid CBDT's Instruction dated 21.02.2017 upto Rs. 2,40,000/- but the lower-authorities rejected assessee's plea and the ITAT also upheld lower-authorities' action. Now, the assessee is claiming that the ITAT has committed an apparent mistake by not considering Instruction dated 21.02.2017. On perusal of ITAT's order, we observe that the ITAT has made an extensive analysis in Para No. 9 to 11, considered the Instruction dated 21.02.2017 read with Press Release dated 18.11.2016 and finally concluded thus in Para No. 12: "12. From a bare reading of Press Release dated 18.11.2016, one can easily find that the CBDT has clarified that the genuine persons depositing their own household savings in cash into the bank accounts would not be questioned. Further, it is also mentioned that the "Unless all citizens of the country help the Government in curbing black money, this mission of black money will not su....
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....ken a reasoned decision in Para No. 9 to 12 of order. Therefore, the assessee's claim that the ITAT has not dealt Instruction dated 21.02.2017 is wrong. So far as the decision of Chetnaben J. Shah Vs. ITO (supra) is concerned, there is no quarrel with the proposition that the authorities cannot make any addition on the basis of mere statement. In fact, this view is time and again accepted by various courts and ITAT, Indore Bench itself and we all are very much aware. But in present case, the AO has made addition on the basis of cash found and seized from assessee in the form of demonetized notes and not merely on the basis of statement of assessee. Therefore, there is no merit in Ld. AR's submission that the AO has made addition on the basis of mere statement. Being so, we do not find any mistake in the impugned order as being projected by assessee. Consequently, this issue is also rejected. 5. The third mistake being claimed by assessee is with regard to the dismissal of assessee's ground No. 3 by ITAT and thereby upholding the levy of tax at a higher rate of 60% u/s 115BBE on the undisclosed income of Rs. 49,99,000/-. The crux of Ld. AR's submission is such that the higher rate ....
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....court as to whether the decision of Hon'ble Kerala High Court in Maruthi Babu Rao Jadav (supra) is the only decision available on the issue of applicability of the amendment made on 15.12.2016 prescribing higher rate in section 115BBE to whole previous year 2016-17, AY 2017-18 or is there any other decision holding otherwise, Ld. AR instantly agreed that the said decision is the only decision available as of now. Thus, we find that the issue has been vehemently dealt by ITAT in its order and the ITAT has rightly taken a view against assessee following the decision of Hon'ble Kerala High Court in Maruthi Babu Rao Jadav (supra). However, the assessee is trying to get a review of ITAT's order on this point which is not permissible in this application. We may re-iterate that once the ITAT has taken a view based on assessee's facts and in the light of available judicial rulings with a thorough discussion in its order, then even if the assessee is not satisfied with the view of ITAT, the remedy lies elsewhere and not in section 254(2) under which this M/A is filed. Faced with this situation, we reject this claim of assessee as well. 6. The fourth and last mistake has been raised by asse....
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....er, some more discussion took place wherein it emerged that the assessee deserves some relief in the matter of calculation of interest u/ s 234B for the reason that the newly inserted Explanation does not restrict adjustment against 'self-assessment liability'. 20. In a recent decision in CIT Vs. Arun Bansal, ITA No. 2615/Del/202 order dated 29.05.2023, the Delhi Bench of ITAT has resolved identical issue as under: "7. Undisputedly, the cash seized was in the possession of the department from the date of search itself, i.e., 01.12.2018. It is a fact that the assessee has also requested the Assessing Officer to adjust the self assessment tax liability on the income declared of Rs. 1,07,00,000/- from the seized amount. However, assessee's request was never accepted. On a reading of section 132B of the Act, though it transpires that the assets seized can be adjusted against any existing liability under the Act and advance tax may not be an existing liability, however, in our view, self assessment tax is certainly an existing liability created on 1st April once the financial year ends. Therefore, the Assessing Officer should have adjusted the tax liability relating to the undisclos....
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....nterest u/s 234A, as under: "5. We have heard the rival submissions. We find that the assessee had to pay tax on the undisclosed income declared by him in the return of income. Admittedly, the assessee had not made any payment towards self-assessment tax but had only pleaded to appropriate the same out of seized cash available with the Department from 23.04.2011 onwards. According to the assessee, once the seized cash is adjusted towards taxes payable by the assessee on the assessed income, there will be no tax that will be left, in order to be eligible to be charged with interest u/s 234A and 234B of the Act. We find that the assessee had already made 132(4) disclosure statement before the DDIT(Inv.) vide letter dated 13.07.2011 filed on 14.07.2011 giving his acceptance for offering of Rs. 66,80,000/- as undisclosed income and giving his consent for appropriation of the said seized cash towards the tax liability for the Assessment year 2011-12. We find that the interest u/s 234A of the Act is chargeable only for the period of delay in filing the return of income. The due date of filing return of income for the assessment year 2011-12 u/s 139(1) of the Act in this case falls on 3....
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....rcular 2/2015 F. NO. 385/03/2015-IT(B) GOVERNMENT OF INDIA Ministry of Finance Department of Revenue Central Board of Direct Taxes (CBDT) North Block, New Delhi 10th February, 2015 Subject: Chargeability of Interest under Section 234A of the Income-tax Act, 1961 on self-assessment tax paid before the due date of filling of return of income-regarding Interest under Section 234A of the Income-tax Act, 1961(hereinafter the Act) is charged in case of default in furnishing return of income by an assessee. The interest is charged at the specified rate on the amount of tax payable on the total income, as reduced by the amount of advance tax, TDS/TCS, any relief of tax allowed under section 90 and section 90A, any deduction allowed under section 91 and any tax credit allowed in accordance with the provisions of section 115JAA and section 115JD of the Act. Since self-assessment tax is not mentioned as a component of tax to be reduced from the amount on which interest under section 234A of the Act is chargeable, interest is being charged on the amount of self-assessment tax paid by the assessee even before the due date of filing of return. 2. It has been held by the Hon'ble S....