Commissioner of Income Tax vs Himalaya Woollen Mills

S.P. Goyal, J.—Because of the late filing of the return for the assessment year 1972-73, at the time of the assessment, the ITO ordered on January 17, 1973, that interest be charged u/s 139(8) of the I.T. Act, 1961 (hereinafter referred to as "the Act"). The assessee filed an appeal against the assessment order and in the appeal, apart from assailing the tax assessed, he also challenged the imposition of the interest. His appeal qua the interest was dismissed on the ground that it was incompetent. This view of the AAC was reversed by the Tribunal. Consequently, the Revenue got the following question referred to this court u/s 256(1) of the Act :

"Whether the Tribunal is right in law in holding that an appeal lies to the Appellate Assistant Commissioner against an order of the Income Tax Officer charging interest u/s 139(8) of the Income Tax Act, 1961?"

It is not necessary for us to discuss in detail the relevant provisions of law because the matter now stands concluded by a Division Bench decision of this court in Commissioner of Income Tax Vs. Raghubir Singh and Sons, , which would be evident from the following observations (headnote):

"The right of appeal is a creature of the statute. Therefore, in case there is no provision provided in the statute for filing an appeal regarding a particular matter, no appeal shall lie. A reading of the provisions of Section 246(1)(c) of the I.T. Act, 1961, goes to show that the assessee can file an appeal against an order where the assessee denies his liability to be assessed under the Act or against any order of assessment under Sub-section (3) of Section 143 or Section 144, where the assessee objects to the amount of income assessed or to the amount of tax determined or to the amount of loss computed or to the status under which he is assessed. There is no provision for an appeal against an order passed under Sub-section (8) of Section 139 of the Act simpliciter. If the assessee has challenged the order under appeal on any of the grounds mentioned in Section 246(1)(c) and, consequently, the liability to pay penal interest is also challenged, the appeal would be competent. This is so because the question of interest is directly linked with the quantum of tax in view of the provisions of Section 139(8) of the Act. But, in case the appeal does not fall within the ambit of the provisions of Section 246(1)(c), the appeal against an order passed u/s 139(8) simpliciter will not be competent. In such cases revision u/s 264 may be maintainable. "

As the appeal in the present case was not simpliciter against the charging of the interest, the appeal was certainly competent in view-of the said decision.

The question referred is, consequently, answered in the affirmative, that is, in favour of the assessee and against the Revenue. No costs.