Madras H.C : The petitioner who had approached the Settlement Commission in the year 1994 and who is a party to the order made on 2nd May, 1995 by that Commission complains that the recovery has been effected by the AO without any authority of law and contrary to the terms of the Settlement Commission’s order.

High Court Of Madras

C.S. Roopasingh vs. CIT

Sections 132(8), 220, 226(3)

R. Jayasimha Babu, J.

Writ Petn. Nos. 14399 & 14400 of 1995 & WMP Nos. 22913 to 22915 of 1995

12th November, 1998

Counsel Appeared

R. Janakiraman, for the Petitioner : S.V. Subramanian, for the RespondentORDER

R. JAYASIMHA BABU, J.:

The petitioner who had approached the Settlement Commission in the year 1994 and who is a party to the order made on 2nd May, 1995 by that Commission complains that the recovery has been effected by the AO without any authority of law and contrary to the terms of the Settlement Commission’s order. It is his case that the fixed deposit receipts seized after searched in his premises on 20th Dec., 1990 had been retained contrary to the mandate of s. 132(8) of the IT Act, 1961 (‘the Act’). It is not in dispute that the fixed deposit receipts have since been encashed by the AO for the adjustment of the amounts against the arrears of tax, etc.

2. The order of the Settlement Commission insofar as it is relevant for the purpose of this case is extracted and set out below : “4(b) For the asst. yrs. 1987-88 and 1988-89, interest under s. 139(8) would be charged for a period of six months. Interest under s. 214/217 would be charged for a period of eighteen months. 4(c) For the asst. yrs. 1989-90 to 1991-92, interest under ss. 234A, 234B and 234C would be charged as per law. However, for the purpose of charging the interest under s. 234B, the date on which the seizure of cash was effected would be taken as the date of payment of tax. 4(d) The AO will intimate the applicant the tax and interest payable as a result of this order. The applicant is directed to pay Rs. 10 lakhs before 1st June, 1995 towards the tax and interest and the balance amount would be payable in four equal quarterly instalments, the first instalment starting w.e.f. 1st July, 1995. Interest under s. 245D(6A) shall be paid along with the last instalment. 4(e) The AO would consider the applicant’s request for the adjustment of the seized cash towards the tax payment arising as a result of this order. . . . .” It is also a part on which the petitioner wants to rely.

3. This order relates to the asst. yrs. 1987-88 and 1988-89. The interest chargeable under s. 139 (8) of the Act and under s. 215/217 of the Act is to be for a period of six months and eighteen months respectively. It is merely a matter of computation. For the asst. yrs. 1989-90 to 1991-92, interest is to be charged under ss. 234A, 234B and 234C of the Act as per law. For the purpose of charging the interest under s. 234B, the date on which the seizure of cash is to be taken as the date of payment of cash. The AO is required to intimate the applicant the tax and interest payable as a result of the order of the Settlement Commission. The petitioner was required to pay Rs. 10 lakhs before 1st June, 1995 towards the tax and interest and the balance amount in four equal quarterly instalments commencing from 1st July 1995. Interest under s. 245D(6A) of the Act was to be paid along with the last instalment. The seized cash could be adjusted against the tax payments, if so requested by the assessee. It is admitted by the assessee that he did not pay the sum of Rs. 10 lakhs on or before 1st June, 1995. He did not also pay the balance in four equal quarterly instalments. It is also admitted that the ITO had made an order dt. 31st May, 1995, determining the tax and interest payable by the assessee as a result of the order. That order was received by the assessee 15th June, 1995. The payments still having not been made by the assessee, the AO ordered notice under s. 226(3) on 12th July, 1995 for the recovery of the entire amount. That notice was issued to the bankers who held monies on behalf of the assessee, for his benefit. The counsel for the petitioner submitted that the petitioner was unable to pay the sum of Rs. 10 lakhs as the fixed deposit receipts had been illegally retained by the Revenue. At the time of hearing, the counsel for the Revenue produced the records which show that the CIT had in fact extended the time-limit under s. 132(8) by adopting the reasons set out in the note put up to him by the AO. The need for further scrutiny of the documents, the fact of the matter being before the Settlement Commission, and the assessee having failed to make any payments, even after the order of the Settlement Commission, were the reasons set out in the proposals. The petitioner’s grievance that the retention of the documents is illegal is, therefore, wholly untenable. The counsel referred to the conditions required to be satisfied in that provision as set out in the case of CIT vs. Oriental Rubber Works (1984) 38 CTR (SC) 154 : (1984) 145 ITR 477 (SC) : TC 62R.172. Having regard to the contents of the files produced before me I am satisfied that all those conditions have been fully complied with.

The Counsel for the petitioner submitted that the recovery of the amount from others, who held money for the benefit of the assessee as also the encashment of the fixed deposit were illegal. The encashment of the FD receipt was valid on account of the default committed by the assessee even after the order of the Settlement Commission. It was, therefore, open to the authorities to recover the amount from and out of the documents retained as also by requiring others, who held money on behalf of the assessee to make the payment of the authorities. The complaint of the counsel for the petitioner that the authorities could have waited till the assessee paid the money in instalments, though appears to be reasonable, cannot be accepted. In view of the fact that the assessee had committed default in the payment of Rs. 10 lakhs and had not come forward to pay the amounts in instalments, the recovery effected by the AO cannot be held to be illegal. The stand of the assessee appears to have been that the fixed deposit receipts and other documents should not have been retained and it is only after their return, the assessee would have become liable for the payment of the amounts directed to be paid by the Settlement Commission. The obligation to pay the money was not postponed till such time the documents were returned. The retention of the documents was done in a manner which was in accordance with law. The retention also did not result in the assessee being relieved from the obligation to pay the amounts required to be paid under the Settlement Commission’s order. In the circumstances, the petitioner is not entitled to any relief in these writ petitions. Both these writ petitions are dismissed. All the connected miscellaneous petitions are also dismissed.

[Citation : 248 ITR 615]

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