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TMI Blog1962 (11) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessment year 1952-53. On August 30, 1952, regular assessment for this year was made and a part of the tax paid in advance was thereupon found refundable to the respondent. Under the provisions of sub-section (5) of section 18A, as it then stood, interest at a certain rate was payable on the amount paid in advance by an assessee under this section. Rupees 14,720-14-0 were found payable to the respondent under this provision and this sum was paid some time in September, 1952. On May 24, 1953, subsection (5) of the section 18A was amended with effect from April 1, 1952. It is not necessary to refer to this amendment in detail and it is enough to state that under it the Government was to have paid to the respondent Rs. 9,404-5-0 inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relief under this Act, or that excessive loss or depreciation allowance has been computed he may proceed to assess or reassess such income, profits or gains or re-compute the loss or depreciation allowance." The assessment, reassessment or computation under this section is to be made according to the provisions of the Act as if it was pursuant to a notice under section 22 of the Act. Under this section, therefore, an assessment earlier made can be reopened if income, profits or gains have escaped assessment or have been under-assessed or assessed at too low a rate, or have been made the subject of excessive relief, or excessive loss or depreciation has been computed. It does not seem to us that any of these conditions can be said to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smaller sum might have been payable as interest. But when it was computed, the new law was not in fact there and, therefore, the computation had been according to the law then in force. That computation cannot be reopened under section 34 because it cannot be said that it is a case either of under-assessment or of excessive relief having been granted. It is really a case where the statutory liability of the State to pay interest was reduced from a higher figure to a lower one. There, quite clearly it was not a case within section 34. We were referred to the form of the notice of demand for the tax. It was contended that the form showed that in computing the tax interest under section 18A had to be taken into account. Therefore, it was sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the proviso to section 35 of the Income-tax Act this court observed: "The learned counsel for the department raised the forlorn argument that the addition of penal interest is not enhancement of assessment as stated in the proviso. We do not see what else it could be." It was contended that this showed that the penal interest was part of the tax. We do not think so. In any event we are not concerned with a case of penal interest here. It cannot obviously be suggested that the interest payable by the Government to the assessee for amounts paid by the assessee as tax in advance is a tax paid by the assessee. At the hearing learned counsel for the State sought leave to contend that the order of July 30, 1957, could be supported under se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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