TMI Blog2009 (5) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... legally re-opened u/s 147? (ii) Whether on the facts and in the circumstances of the case, in respect of refund relating to assessment year 1993-94, the interest u/s 244A quantified u/s 143(1)(a)in Assessment year 1994-95 on 13.01.1994 and subsequently reduced in the assessment order u/s 143(3) dated 22.03.1995 which was served on the appellant in the assessment year 1996-97 on 12.04.1995, was legally assessable in the assessment year 1994-95 ? (iii) Whether on the facts and in the circumstances of the case, the ITAT is justified in upholding charging of interest u/s 234B in absence of any order by the Assessing officer in the order of assessment ? 3. During the course of submissions, learned counsel for the appellant did not press the question of law at serial nos. (i) and (ii) above. We are now called upon to answer the question no. (iii) only. 4. A brief statement of facts essential for the disposal of the appeal may be indicated. The appellant-assessee filed returns on 29.11.1994, in respect of assessment year 1994-95, showing taxable income of ₹ 95,22,612/. The return was processed under section 143(1) (a) on 29.12.1994. The assessment was made on 22.3.1995. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgments: (i) Judgment dated 30.10.2007, passed by a Division Bench of Punjab and Haryana High Court in CM No. 23598 of 2006 IT Appeal No.600 of 2006, Parkash Agro Industries Vs. Deputy Commissioner of Income Tax, (2008)2 Direct Taxes Reporter( P H) 356. (ii) (2007) 294 ITR 374(Ker), Seapearl Enterprises V. Deputy Commissioner of Income-Tax. 9. It appears from a perusal of the assessment order that he has not discussed the question of imposition of interest on the part payment or delayed payment of advance income tax notwithstanding which interest has been calculated and included in the demand notice. Indeed the learned Tribunal noted as follows in the impugned order: ... Moreover, the learned A.O. in his assessment order u/s 143(3) had never ordered for interest to be charged u/s 234B. He has, however, concluded as follows in paragraph 4.2 of the impugned order: Regarding the ground with respect to interest u/s 234B, amounting to ₹ 1,53,856/-, all the controversies have been put to rest by the amendment in the Income Tax Act applicable retrospectively from 1.4.89. This being the AY 1994-95 is clearly applicable and hence, this ground is also rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l but in view of the fact such a question of law was formulated while admitting the appeal and in the face of the judgment of the Full Bench of this Court in the case of Smt. Tej Kumari V. CIT (2001) 247 ITR 210, we have no option than to accept Mr. Rastogi‟s contention. In the said case the Full Bench of this court has held as follows (page 218): In the absence of any specific order of the assessing authority interest could not be charged and recovered from the assessee. It is evident that the same relates to the assessment year 1996-97, yet the provisions of section 234B of the Act were not brought to the notice of the Bench. In other words, the judgment in the case of Vimla Stores (supra) is without consideration of the mandatory provisions of section 234B of the Act. In such a situation, we are of the view that the judgment is Per Incuriam and does not bind us. The provisions of section 234B of the Act are mandatory in nature and we are of the view that, if it were considered in the case of Vimla Stores(supra), the conclusion may have been different. 13. One of us (S.K. Katriar,J.) had occasion to consider the doctrine of Per Incuriam in the case of M/s. Ram L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te court is not binding. 41. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. A decisions passes sub-silentio, in the technical sense that has come to be attached to the phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. (Salmond on Jurisprudence 12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. the Court did not feel bound by earlier decision as it was rendered without any argument, without reference to the crucial words of the rule and without any citation of the authority‟. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur. The Bench held that, precedents sub-silentio and without argument are of no moment‟. The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express ..... X X X X Extracts X X X X X X X X Extracts X X X X
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