TMI Blog2003 (7) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... H. KAPADIA., J. P. DEVADHAR. JUDGMENT The judgment of the court was delivered by S.H. KAPADIA J.- This reference has come before the court at the instance of the assessee under section 256(1) of the Income-tax Act, 1961. It concerns the assessment year 1985-86. In this reference, the following question arises for determination: "Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that no appeal was maintainable against the refusal to grant interest under sections 214 and 244(1A)?"Facts: While giving effect to the order dated December 31, 1986, passed by the Commissioner of Income-tax (Appeals), the Assessing Officer failed to grant interest on Rs. 6,13,234 paid by way of advance ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Assessing Officer on February 18, 1987 was a rectification order and, therefore, the said order not granting interest was appealable under section 246(1)(f). Mr. R.V. Desai, learned senior counsel appearing on behalf of the Department, on the other hand, submitted that in this matter the only ground of appeal preferred by the assessee was non-granting of interest under section 214 and section 244(1A) and, therefore, the appeal filed by the assessee was not maintainable. Findings: It is well-settled proposition that there is no inherent right of appeal. That, it is to be specifically conferred by the statute. It is equally well settled that if there is a provision conferring a right of appeal it should be construed in a reasona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 244(1A). This fact is important because in the various judgments cited by the assessee, the Department has denied its liability to pay interest on the excess amount of advance tax paid by the assessee. In the circumstances, the judgments cited on behalf of the assessee have no application to the facts of the present case. In the case of Central Provinces Manganese Ore Co. Ltd. v. CIT [1986] 160 ITR 961 (SC) it has been held that section 246(1)(c) provides, inter alia, that an appeal against an order under section 215 shall lie provided the assessee disputes the levy on the ground that he is not liable to the levy at all. That, levy of interest is a part of the process of assessment and it is open to the assessee to dispute the levy in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessee on the amount of refund under section 214 of the Income-tax Act. Since the appeal in that case was not filed against non-payment of interest under section 214 only and since there were other grounds and non-payment of interest formed one of the many grounds, the Bombay High Court took the view that the appeal was maintainable under section 246(1)(c). Therefore, that judgment also has no application to the facts of the present case. Similarly, in the case of Empire Industries Ltd. v. CIT [1992] 193 ITR 295 (Bom), the question as to whether the appeal was maintainable under section 246(1)(c) against the order of the Assessing Officer not granting interest under section 214 was expressly kept open. Therefore, the said judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of sub-section (2), any assessee aggrieved by any of the following orders of an Income-tax Officer may appeal to the Appellate Assistant Commissioner against such order-... (f) an order under section 154 or section 155 having the effect of enhancing the assessment or reducing a refund or an order refusing to allow the claim made by the assessee under either of the said sections." In the case of Empire Industries Ltd. v. CIT [1992] 193 ITR 295, the assessee had paid advance tax of Rs. 24.47 lakhs on regular assessment being completed under section 143(3). The Assessing Officer raised the demand under section 156 of the Act of Rs. 7.27 lakhs including interest of Rs. 56,000. By order dated June 27, 1974, the appellate authority a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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