Lubrizol India Ltd. vs Commissioner of Income Tax

Sugla, J.—The reference is at the instance of the assessee-company. The proceedings relate to the assessment year 1981-82. The Tribunal has referred to this Court three questions of law u/s 256(1) of the income tax Act, 1961 (''the Act''). The questions are:

"1. Whether, the expenditure incurred on repairs of the flats, owned by the company, amounting to Rs. 5,560 and expenditure incurred on repairs of flats taken on lease by the company, amount to Rs. 6,400 were a perquisite and, as such, liable to be taken into consideration for the purpose of section 40A(5)?

Whether the claim for deduction of the surtax liability was an allowable deduction while computing the total income of the company?

Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the order of the Commissioner (Appeals) holding that the ground relating to levy of interest u/s 215 was not appealable u/s 246 of the income tax Act, 1961?"

It may, at the outset, be mentioned that question No. (1) as framed by the Tribunal requires reframing, inasmuch as it does not bring out the real controversy between the parties. The controversy is whether the expenditure incurred on repairs of the flats owned by the assessee or taken on lease which are used for the residence of its employees is to be considered for disallowance u/s 40A(5) of the Act. It is not really material whether such an expenditure amounts to a perquisite in the hands of the employees. In the circumstances, the question No. (2) is refrained as under:

"Whether, the expenditure incurred on repairs of the assessee''s own flats and the flats taken by it on lease and used by its employees for residence is to be considered for disallowance u/s 40A(5) of the income tax Act, 1961?"

It is common ground that the expenditure incurred herein amounted to Rs. 11,960 (Rs. 5,500 on the repairs of the flats owned and Rs. 6,400 on the flats taken by the assessee on lease). These flats are admittedly used by the assessee''s employees for residence. The Assessing Officer rejected the assessee''s claim that the provisions of section 40A(5) were not attracted, and considered the abovesaid amount for the purpose of disallowance under that section. The Commissioner (Appeals) agreed with the Assessing Officer and the Tribunal confirmed the order of the Commissioner (Appeals) following the Special Bench order of the Tribunal in the case of Kodak Ltd. v. IAC [1986] 18 ITD 213 (Bom.).

It is stated by the learned counsel for the assessee that the expenditure on repairs of the flats either owned or taken on lease by the assessee was incurred in its capacity as the owner of the flats and that such an expenditure did not result in any perquisite to the employees. The submission is that unless an expenditure incurred by the assessee results in some kind of perquisite to the employees, the expenditure cannot be considered for the purpose of disallowance u/s 40A(5). According to Shri Andhyarjuna it was the obligation of the assessee to maintain the flats in a good and habitable. condition and by incurring expenditure to keep them in such a condition, the assessee merely discharged its aforesaid obligation as owner and did nothing for the employees.

Shri Jetly, the learned counsel for the revenue, on the other hand, stated that sub-clause (ii) of clause (a) of section 40A(5) had two parts and that it was the second part which was attracted. The second part of the clause, it was submitted, refers to a factual state of affairs and does not require the expenditure incurred by an assessee to result in any perquisite to the employees.

Section 40A(5)(a)(ii) reads as under:

"Expenses or payments not deductible in certain circumstances. -(1)The provisions of this section shall have effect notwithstanding anything to the contrary....

(2) to (4) ****

(5)(a) Where the assessee-

(i) ****

(ii) incurs any expenditure which results directly or indirectly in the provision of any perquisite (whether convertible into money or not) to an employee or incurs directly or indirectly any expenditure or is entitled to any allowance in respect of any assets of the assessee used by an employee either wholly or partly for his own purposes or benefit,

then, subject to the provisions of clause (b), so much of such expenditure or allowance as is in excess of the limit specified in respect thereof in clause (c) shall not be allowed as a deduction:"

The sub-clause evidently has two parts. The first part applies only if the expenditure results in any perquisite to the employee. But we are not concerned with that part in this case. The second part so far as it is relevant for the case applies to a case where the assessee incurs any expenditure in respect of any of its assets used by an employee for his own purposes or benefit. Admittedly, the assessee has incurred expenditure on repairs in respect of certain flats owned or taken by it on lease. Admittedly again, these flats are used by the employees of the assessee for residence. Under the circumstances, on the basis of plain construction of the provision the expenditure incurred herein by the assessee is covered and hit by the provisions of second part of section 40A(5)(a)(ii).

We are fortified in our this view by a Full Bench decision of the Kerala High Court in the case of Commissioner of Income Tax Vs. Forbes, Ewart and Figgis (P.) Ltd. and Harrison and Crossfield Ltd., . It was held in that case that there can be no scope for any ambiguity in regard to the meaning of the corresponding provision as it stands in section 40A(5). That provision contemplates the disallowance of a deduction in excess of the specified limit where the assessee incurs directly or indirectly any expenditure or is entitled to any allowance in respect of any assets of the assessee used by ''an employee'' either wholly or partly for his own purpose or benefit. Distinction was drawn between the provisions of section 40(a)(v) of the Act and section 40A(5)(a)(ii), to point out that in place of the expression ''such an employee'' in section 40(a)(v), the expression ''an employee'' was used in section 40A(5)(a)(ii). u/s 40(a)(v) there was some scope for doubt as relying on the expression ''such an employee'' it could perhaps be argued that the employee referred to therein was the employee covered by the first part, i.e., to whom the expenditure resulted in any perquisite. But section 40A(5)(a)(ii), it was held, made the matter clear beyond doubt. This judgment was referred to in the decision of this Court in the case of Commissioner of Income Tax Vs. Yorkshire Insurance Co. Ltd., , wherein it was held in regard to the depreciation allowable on the flat provided to a director, that it could be allowed only to the extent not covered by the provisions of section 40(a)(v).

The counsel for the assessee, it may be stated, had in support of his contention referred to and relied upon the Calcutta High Court decision in the case of Commissioner of Income Tax Vs. Davidson of India Pvt. Ltd., , the Andhra Pradesh High Court decisions in the cafes of Commissioner of Income Tax Vs. Vazir Sultan Tobacco Company Ltd., and Commissioner of Income Tax Vs. Vazir Sultan Tobacco Co. Ltd., and the Karnataka High Court decision in the case of Commissioner of Income Tax Vs. Motor Industries Co. Ltd., . However, these decisions do not really support his contention. The subject-matter of consideration in the Calcutta High Court case was section 40(c)(iii). So was the position in the Andhra Pradesh High Court case in Commissioner of Income Tax Vs. Vazir Sultan Tobacco Company Ltd., . The provisions of section 40(c)(iii) are materially different from the provisions of section 40A(5)(a)(ii). Section 40A(5)(a)(ii) has already been referred to in the paragraph 5 of the judgment. The provisions of section 40(c)(iii) are reproduced hereunder:

"40. Amounts not deductible. - Notwithstanding anything to the contrary in sections 30 to 38, the following amounts shall not be deducted in computing the income chargeable under the head ''Profits and gains of business or profession:-

(a) and (b) ****

(c) in the case of any company-

(i) and (ii) ****

(iii) any expenditure incurred after the 29th day of February, 1964, which results directly or indirectly in the provision of any benefit or amenity or perquisite, whether convertible into money or not, to an employee (including any sum paid by the company in respect of any obligation which but for such payment would have been payable by such employee), to the extent such expenditure exceeds one-fifth of the amount of salary payable to the employee for any period of his employment after the aforesaid date:

Provided...."

The second part of the provision in section 40A(5)(a)(ii) is conspicuously absent in section 40(c)(iii).

It is true that the Andhra Pradesh High Court considered the provisions of section 40A(5) in its decision in CIT v. Vazir Sultan Tobacco Co. Ltd. [1988] 173 ITR 290 (AP) and took the view that the counsel for the assessee is persuading us to take. However, beyond following its earlier decision in Commissioner of Income Tax Vs. Vazir Sultan Tobacco Company Ltd., which was on the provisions of section 40(c)(iii), there is no discussion as to why the same view was required to be taken despite the fact that the two provisions were materially different. The question before Karnataka High Court in Motor Industries Co. Ltd.''s case (supra), on the other hand, was whether the notional expenditure on depreciation and expenditure on repairs and property tax in respect of buildings, owned by the assesses and used for residential quarters of employees amounted to perquisite in the hands of employees for the purpose of section 40A(5). This question is obviously different from the reframed question in the present case. Moreover, the Karnataka High Court did not answer that question and sent back the matter to the Tribunal for disposal afresh according to law.

In the circumstances, we hold that the second part of section 40A(5)(a)(ii) is clearly attracted to the expenditure involved in the question. Accordingly, we answer the first question as reframed by us in the affirmative and in favour of the revenue.

The second question of law relates to sur-tax liability. The question involves two aspects: The first aspect is whether the sur-tax liability is deductible u/s 37 of the Act. The second aspect would be assuming it is so, whether it is hit by the provisions of section 40(a)(ii). The assessing authority disallowed the claim for reasons given in paragraph 12 of his order. The Commissioner (Appeals) confirmed the disallowance following the Calcutta High Court decision in the case of Molins of India Ltd. Vs. Commissioner of Income Tax, . The Tribunal also, following the aforesaid Calcutta High Court decision confirmed the order of the Commissioner.

The learned counsel for the assessee fairly admitted that seven High Courts, namely, Karnataka, Andhra Pradesh, Rajasthan, Gujarat, Calcutta, Punjab and Haryana and Kerala, have taken the view as has been taken by the departmental authorities and the Tribunal in this case. However, he invited our attention to a Gauhati High Court decision in the case of Doom Dooma Tea Co. Ltd. v. CIT [1989] 180 ITR 126/ 45 Taxman 174 where after considering the judgments of all other High Courts, sur-tax was held to be an allowable deduction and not hit by the provisions of section 40(a)(ii). Shri Jetly, the learned counsel for the revenue, on the other hand, strongly relied on the decisions of High Courts other than the Gauhati High Court. He pointed out that the Gauhati High Court had dissented from the decisions of other High Courts on two grounds and both the grounds were untenable.

In order to appreciate the rival contentions, it is desirable to refer to the nature of the Companies (Profits) Sur-tax Act, 1964. It is a Central Act being Act No. VII of 1964. The preamble states that it is an Act to impose a special tax on the profits of certain companies. The charge u/s 4 is on the chargeable profits as defined in section 2(5) which is the total income of an assessee computed under the Act for any previous year or years subject to adjustments contemplated by the provisions of First Schedule. In other words, the basis is the total income for the purpose of income tax and the adjustments to such profits in the First Schedule mostly show that certain items of income or figures computed for the purpose of income tax under the different heads are either excluded or deducted and certain items of expenditure which had been allowed in the income tax are to be added back. The charge u/s 4 again is not on the entire chargeable profits but only on so much thereof as exceeds the statutory deduction, the statutory deduction being, according to the definition in section 2(8) an amount equal to 10 per cent of the capital of the company computed according to the provisions of the Second Schedule subject to a minimum of two lakhs of rupees. The rates of sur-tax on the excess are fixed in the Third Schedule.

The nature of the levy is, thus, one of tax on profits in excess of statutory deduction in case of certain companies. In this background we have to consider whether sur-tax is not allowable as deduction u/s 37 of the income tax Act, 1961. Section 37 provides for allowance of any expenditure not being (i) expenditure in the nature described in sections 30 to 36 of the Act and section 80VV and not being, (ii) in the nature of capital or personal expenditure laid out wholly and exclusively for the purposes of the business or profession. The question, therefore, is whether sur-tax liability is fastened on the assessee wholly and exclusively for the purpose of its business. One of the tests to be applied is whether the expenditure is incurred in the character as a person carrying on business or in some other capacity. The expenditure incurred in the capacity of a person carrying on business alone is deductible as being for the purpose of the business. Particularly when the payment is out of profits, the question will arise whether the payment represents a mere division of profits with another party or whether it is an item of expenditure the amount of which is ascertained by reference to profits. As held in a number of decisions income tax is a Crown''s or Central Government''s share in the profits of a company. The nature of sur-tax is not different. The Supreme Court held in the case of Travancore Titanium Products Ltd. Vs. Commissioner of Income Tax, Kerala, that wealth-tax was a levy on the assets of a taxpayer because they were owned by him and not because they were used by him in the business and as such not an expenditure deductible u/s 37. It is true that in its subsequent decisions in the cases of Indian Aluminium Co. Ltd. v. CIT [1972] 84 ITR 735 (SC) and Commissioner of Income Tax, Calcutta Vs. Standard Vacuum Oil Co., , the Supreme Court qualified its earlier decision by observing that the test that "to be a permissible deduction, there must be a direct and intimate connection between the expenditure and the character of the assessee as a trader and not as owner of assets, even if they are assets of the business" needs to be qualified by stating that if the expenditure is in the capacity of owner-cum-trader it must be treated as paid as trader. Be that as it may, the test in the present case will continue to be whether sur-tax is payable by the assessee as a person carrying on business or as a person who has earned profits from business beyond a particular limit. The answer is obvious. Sur-tax is payable by him not merely for his carrying on the business but on the further condition of his having profits beyond a limit.

This is also the view taken by a Full Bench of the Kerala High Court in the case of A.V. Thomas and Co. Ltd. Vs. Commissioner of Income Tax, , where it was observed as under:

"Surtax which is levied on excess chargeable profits is a levy on the total income computed under the income tax Act after it is adjusted in accordance with the machinery provided for it under the Surtax Act. In the nature of this tax, it is a levy on the basis of the profits or gains of the business. It is an application of the profits or gains of the business after they have been earned. Like in the case of income tax or super tax, so in the case of surtax, any sum paid on account of such levy is not an expenditure laid out or expended for the purposes of the business. Whether or not it comes within the express prohibition under the statute, it is not an allowable deduction u/s 37." (p. 442)

The Calcutta High Court in the case of Molins of India Ltd.''s case (supra), the Madras High Court in the case of Sundaram Industries Ltd. v. CIT [1986] 159 ITR 646 / 26 Taxman 187, the Andhra Pradesh High Court in the case of Vazir Sultan Tobacco Co. Ltd. Vs. Commissioner of Income Tax, the Gujarat High Court in the case of S.L.M. Maneklal Industries Ltd. v. CIT [1988] 172 ITR 176/ 39 Taxman 42 the Karnataka High Court in the case of T.T. Pvt. Ltd. Vs. Commissioner of Income Tax, , the Allahabad High Court in the case of CIT v. Kamlapat Motilal [1988] 172 ITR 438/ 45 Taxman 95 and the Punjab and Haryana High Court in the case of Highway Cycle Industries Ltd. Vs. Commissioner of Income Tax, have also, it may be stated, held that surtax liability is not allowable as expenditure u/s 37.

The Gauhati High Court in Doom Dooma Tea Co. Ltd.''s case (supra), of course, held to the contrary. However, with respect to that High Court we find it difficult to follow their decision. The reason is simple. The only argument appears to have been advanced on behalf of the revenue in that case was that as there was no specific provision in the Act providing for deduction in respect of sur-tax liability, sur-tax liability could not be allowed as deduction. This contention was held to be and rightly not tenable as a number of other taxes, cesses and levies about which there was no specific provision for deduction in the Act were held deductible by the Supreme Court and various High Courts. Reference in this context was made to the two Supreme Court decisions in the cases of Jaipuria Samla Amalgamated Collieries Ltd. etc. Vs. The Commissioner of Income Tax, West Bengal, and Indian Aluminium Co. Ltd.''s case (supra). The contention that surtax is not paid wholly and exclusively for the purpose of business by an assessee in his capacity as a person carrying on business was neither raised nor considered in that case. There can, of course, be no quarrel with the proposition that if surtax is otherwise allowable as deduction being expenditure wholly and exclusively incurred for the purpose of business, the fact that there is no specific provision in the Act for providing for its deduction will not stand in the way of deduction. Accordingly, we hold that sur-tax is not allowable as deduction u/s 37.

In the view we have taken on the first aspect of the question, strictly speaking, it is not further necessary to consider whether allowability of surtax is also hit by the provisions of section 40(a)(iii). Since, the matter was argued at length, we will consider that aspect also. As stated by us in paragraph 10 of the judgment, surtax is a charge on the chargeable profits of certain companies. Chargeable profits are computed on the basis of the total income computed for income tax purpose subject to adjustments provided in the First Schedule. There again the charge is not on the whole of chargeable profits so computed. The charge is on so much of the chargeable profits as exceed the statutory deductions, i.e., 10 per cent of the capital of the assessee-company computed in the manner laid down in the Second Schedule. On consideration the provisions for adjustment prescribed in the 12 clauses of the First Schedule, it becomes clear that as a result of adjustments the chargeable profits are nothing but profits of a business as commercially understood reduced by the income tax payable under the Act. Under the circumstances, it appears crystal clear to us that surtax is a tax on a portion of the profits and gains of the business. However, the argument that appealed to the Gauhati High Court was that though surtax was a tax in common parlance, it was not so far the purpose of section 40(a)(ii), as the word ''tax'' as used therein was to have a meaning assigned to it u/s 2(43) of the Act. Section 40(a)(ii) and section 2(43) reads as under:

"40. Amounts not deductible. -Notwithstanding anything to the contrary in sections 30 to 38, the following amounts shall not be deducted in computing the income chargeable under the head ''Profits and gains of business or profession:-

(a) in the case of any assessee-

(i) ****

(ii) any sum paid on account of any rule or tax levied on the profits or gains of any business or profession or assessed at a proportion of, or otherwise on the basis of, any such profits or gains;

Definitions. - In this Act, unless the context otherwise requires,-

(1) to (42) ****

(43) ''tax'' in relation to the assessment year commencing on the 1st day of April, 1965, and any subsequent assessment year means income tax chargeable under the provisions of this Act, and in relation to any other assessment year income tax and super-tax chargeable under the provisions of this Act prior to the aforesaid date;"

With respect this argument does not appeal to us. It is significant to note that the word ''tax'' is used in conjunction with the words ''any rate or tax''. The word ''any'' goes both with the rate and tax. The expression is further qualified as a rate or tax levied on the profits or gains of any business or profess on or assessed at a proportion of, or otherwise on the basis of, any such profits or gains. If the word ''tax'' is to be given the meaning assigned to it by section 2(43), the word ''any'' used before it will be otiose and the further qualification as to the nature of levy will also become meaningless. Furthermore, the word ''tax'' as defined in section 2(43) of the Act is subject to "unless the context otherwise requires". In view of the discussion above we hold that the word ''any'' tax herein refers to any kind of tax levied or leviable on the profits or gains of any business or profession or assessed at a proportion of, or otherwise on the basis of, any such profits or gains.

Another argument advanced was that surtax was not a tax on the profits or gains of the business, inasmuch as, it was chargeable on the basis of chargeable profits and not on the profits or gains of the business. In our view, this argument overlooks the material fact that for determination of chargeable profits, the total income of an assessee computed under the income tax Act is the starting point. Mere fact that the total income is subjected to certain adjustments contemplated in the First Schedule to the Surtax Act does not mean that surtax ceases to be a tax levied at least on a portion of profits and gains of the business. The basic character of the income does not undergo any change just because while computing chargeable profits the total income is subjected to certain adjustments.

In our this view, we are fortified by a decision of the Rajasthan High Court in Associated Stone Industries (Kota) Ltd. v. CIT [1988] 170 ITR 653 / 36 Taxman 247, a Full Bench decision of the Kerala High Court in the case of A.V. Thomas & Co. Ltd. (supra) and the Madras High Court decision in the case of Sundaram Industries Ltd. (supra).

Accordingly, we answer the second question in the negative and in favour of the revenue.

This takes us to the third question. The Assessing Officer mentioned at the foot of the assessment order ''Charge interest u/s 215''. The levy of interest was challenged in appeal. The Commissioner (Appeals) noted that the assessee''s contention was that the interest u/s 215 of the Act was not at all leviable in the case. Observing, however, that the advance tax paid in this case was less than the tax determined on assessment, he held that the provisions of section 215 were prima facie attracted. It was further held that the levy of interest u/s 215 was not appealable u/s 246 of the Act and, hence, it was not possible to entertain the ground. However, he directed the Assessing Officer to modify the interest charged in accordance with the provisions of section 215(3) on the basis of the appellate order.

The Tribunal stated that it did not appear to it that the assessee was totally denying its liability, and agreed with the Commissioner (Appeals) that the levy of interest u/s 215 was not appealable.

The Full Bench of our High Court in the case of Commissioner of Income Tax, Bombay City-I Vs. Daimler Benz A.G., , has considered this question. The assessee in that case was a non-resident company. The contention was that tax from income accruing to it was deductible at source u/s 18 and as such no part of income was liable to payment of advance tax u/s 18A. It was held that the liability to pay advance tax itself was denied in that case and, therefore, the case fell within the expression ''denying his liability to be assessed under this Act'' used in section 30 of the 1922 Act. The appeal against levy of interest was held to be competent. The corresponding provisions in the Act, it is common ground, are in pari materia. In its penultimate paragraph the Court summed up its conclusion as under:

"Having regard to the aforesaid discussion of the decided cases it appears to us clear that the correct position would be that the assessee will have no right of appeal to the Appellate Assistant Commissioner merely against the quantum of penal interest charged, that is to say, merely for the purpose of raising a contention that interest charged is excessive or should be reduced or should have been waived altogether but an appeal would lie to the Appellate Assistant Commissioner if he were to deny altogether his liability to pay such interest on the ground that he is not liable to pay advance tax at all or that the amount of advance tax determined as payable by the income tax Officer is not correct. In the instant case before us there is no doubt that the assessee had preferred an appeal to the Appellate Assistant Commissioner in which the principal ground of attack against the charge of penal interest levied against it was that the assessee-company being a non-resident company was not liable to be assessed to advance tax at all inasmuch as its income was under one or the other head falling u/s 18 of the Act and was outside the purview of section 18A of the Act. In other words, it was a clear case of an assessee ''denying its liability to be assessed under this Act'' and as such the appeal to the Appellate Assistant Commissioner was competent u/s 30(1) of the 1922 Act...." (p. 989)

This Court held in the case of CIT v. B.V. Sabunani [1989] 177 ITR 56/ 42 Taxman 60 that even when the liability to be assessed to advance tax was challenged or to some extent disputed or denied, appeal against levy of interest u/s 215 would lie. In that case total income was reduced as a result of appellate order and it was held that the liability to be assessed to tax including interest was, thus, to some extent disputed. In another decision of this Court in Hazarimal Rekhchand v. CIT [1989] 177 ITR 69/ 42 Taxman 20 the challenge was to the levy of interest under proviso (iii) to section 139(1) of the income tax Act, 1961. The contention was that the said provisions were not attracted in the assessee''s case at all. However, despite the Court''s inviting counsel''s attention that an appeal against levy of interest could lie only in certain circumstances such as where the claim was that the return was not belated or that the provisions u/s 139(1) were not attracted at all, the counsel was not able to show even prima facie the ground on which such a contention could be raised. In the circumstances, it was held that the appeal was not competent.

The facts in the present case are in no way different. Except for making a bald statement that it is not liable to interest u/s 215 at all, the assessee has not even made a prima facie case for the denial of liability to pay advance tax or to interest u/s 215. On the other hand, the fact that payment of Rs. 2,27,53,700 was made as advance tax and a sum of Rs. 50,92,715 was further paid by way of tax on the basis of self-assessment, in our view, clearly indicated that the assessee was liable to pay advance tax and that the advance tax paid fell short of 83? per cent of the assessed tax.

The counsel for the assessee, it may be stated, had placed reliance on the Calcutta High Court decision in the case of Commissioner of Income Tax Vs. Lalit Prasad Rohini Kumar, , the Delhi High Court decision in the case of Commissioner of Income Tax Vs. Mahabir Prashad and Sons, and the Supreme Court decision in the case of Central Provinces Manganese Ore Co. Ltd. v. CIT [1986] 160 ITR 961 / 27 Taxman 275, in support of the claim that the appeal was competent. However, the judgments relied upon by the counsel for the assessee do not help the assessee. The question before the Calcutta High Court pertained to the appealability of similar order. After referring to a number of judgments including the Full Bench judgment of this Court in Daimler Berz A.G.''s case (supra), it was held:

"...On a reading of the section it appears to us that where the liability to pay interest is being denied as such, such an appeal would be covered by the first limb being an order in which the assessee, being a person by whom interest is payable, is denying his liability to the payability of that interest. But where such liability to pay interest as such is not being denied, but only the imposition is being challenged either being excessive or not being made in regular course, such appeals, in our opinion, are not covered by the first limb being orders in respect of which the assessee can be said to be denying his liability to the payability of interest under the Act." (p. 610)

We are not able to appreciate how this decision lays down anything different from what is laid down by the Full Bench of our Court. The fact that SLP filed against the Calcutta High Court decision was rejected by the Supreme Court naturally does not make any difference in the situation. The Supreme Court has, of course, held in Central Provinces Manganese Ore Co. Ltd.''s case (supra) that the levy of interest u/s 215 is a part of the process of assessment. It is significant to note that the question in that case was whether the assessee had made out a case for waiver or reduction of the interest levied u/s 215 and section 139(8), can or cannot be the subject of an appeal u/s 246(c) of the Act. After quoting from the Karnataka High Court decision in the case of National Products Vs. Commissioner of Income Tax, Mysore, , in extenso, the Supreme Court referred to the dissent expressed by the Gujarat High Court regarding the question whether the assessee could in appeal challenge partial liability to be assessed to interest and observed that it would not enter into the area of dissent. The Supreme Court, of course, held that the assessee could not certainly argue in appeal that interest levied u/s 215 ought to have been reduced or waived. Thus, this decision also does not support the assessee''s contention. The Delhi High Court has in Mahabir Parshad & Sons'' case (supra) of course, taken a liberal view. But as stated earlier the view taken by our High Court is different. In the circumstances, following our Court''s decisions (supra) we answer the third question also in the affirmative and in favour of the revenue.

No order as to costs.