TMI Blog2000 (10) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... or the assessment year 1992-93, the assessee filed the return of income on 19-10-1993 admitting a total income of Rs. 1,25,070. The assessment was completed under section 143(3) of the Income-tax Act on 30-3-1995 determining the total income at Rs. 4,98,590. Against the assessment the assessee filed an appeal before the Commissioner (Appeals). Though the assessee claimed that the tax due on the returned income had been paid before filing the appeal the Commissioner (Appeals) felt that there was shortfall in the payment of tax. On that view the appellate authority held that the appeal could not be admitted. Aggrieved with the order of the Commissioner (Appeals) dismissing the appeal in limine the assessee has filed this appeal before the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder any provision of the Act under sections 234A, 234B and 234C and the return itself is required to be accompanied by the proof of payment of 'such tax and interest'. As rightly pointed out by learned Assessing Officer, the Explanation to section 140A(1) clearly provides that where the amount paid by the assessee by way of self-assessment tax under section 140A falls short of the aggregate of the tax and interest, the amount so paid shall first be adjusted towards interest payable and the balance, if any, shall be adjusted towards the tax payable." According to the Commissioner (Appeals) the expression 'tax due on the income returned' as appearing in section 249(4)(a) refers to self-assessment tax payable under section 140A(1) read wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Subramanian, contended before us that the assessee being a partnership firm, the payment of Rs. 14,110 fully covered the tax due on the admitted income. Not only that, at the time of filing the return the assessee had also made payment towards interest under sections 234A and 234C. But then there was a shortfall of Rs. 2,507 in regard to interest payable under sections 234A and 234C. The view taken by the Commissioner (Appeals) was that as per the Explanation, section 140A(1) the amount paid shall first be adjusted towards the interest payable. In that sense, the shortfall as found by the Commissioner (Appeals) was in respect of the tax on the admitted income. It is provided in section 249(4) that no appeal under Chapter XXA shall be admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing payment of tax' clearly indicate that penalty can be levied only if the assessee is in default in payment of tax." It can be seen from the above that under the IT Act interest is different and distinct from tax and tax does not include interest. It is not difficult to see that the 'tax due on the income returned' by the assessee, does not include the penal interest payable for the delay in furnishing the return or for the default in payment of advance tax. Under section 249(4) the only requirement before admitting the appeal is that the assessee should have paid the tax due on the income returned by him. There is no condition that the interest if any payable under sections 234A, 234B and 234C also should be paid before the appeal coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling of appeal, particularly because the wording in the two sections are different. True, Explanation below section 140A provides that where the amount paid by the assessee under sub-section (1) falls short of the aggregate of the tax and interest, the amount so paid shall first be adjusted towards the interest payable as aforesaid and the balance if any shall be adjusted towards the tax payable. The Explanation only provides as to how the adjustment is to be made towards tax and interest, in a case of shortfall in the aggregate payment. But there is no such Explanation inserted in section 249(4). Section 249(4) also does not envisage an aggregate of the tax and interest. The Commissioner (Appeals) is therefore not correct in making a combi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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