9911796707
TMI Blog2001 (3) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 216 in the course of the reassessment under section 147 ?" The dispute relates to 1971-72. The factual position is almost undisputed and is as follows : Originally, the assessment was completed on January 21, 1975, and the Income-tax Officer had charged interest under section 216 of the Act. The same was not challenged by the assessee, though an appeal had been filed on other grounds. Thereafter, the assessment was reopened by the Income-tax Officer under section 147, as according to him income chargeable to tax had escaped assessment. A draft assessment order was prepared by him and sent to the Inspecting Assistant Commissioner under section 144B of the Act. A copy of the draft assessment was also sent to the assessee. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner, i.e., non-challenge of interest in the first instance and absence of proper reasons for filing nil estimate have not been considered in the proper perspective. The Tribunal held that without establishing that the estimate of advance tax was not bona fide, interest under section 216 could not be charged. With reference to section 147 of the Act it was held that the assessee cannot reagitate questions which have been decided in the original assessment and in case income has escaped assessment, the same can be subsequently charged and it is not open to an assessee when charged in that way to reopen the whole assessment. It is, however, open to the assessee to plead that there was bona fide belief so far as the estimate filed is concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal had been preferred wherein there was no challenge to the levy of interest. The scope of proceedings under section 147 of the Act relates to underassessment or escaped assessment of income. As has been rightly submitted by learned counsel for the Revenue, the assessee cannot be put in a better position than what existed at the time of original assessment, because he has not chosen to challenge the levy at the first stage. Additionally, from the documents filed before us, we find that in the order passed under section 143(3) read with section 144B. the Income-tax Officer has noted as follows : "In the draft assessment order I had proposed to charge interest under sections 216 and 215, the assessee has raised an objection before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned in appeal against the order in the reassessment proceedings. If the assessee wanted to question the levy of interest, appeal should have been filed against the regular assessment.
In our view, the legal position has been laid (town in the proper perspective in the said case. The case of the Revenue stands on a better footing in the case at hand, since no appeal was filed earlier in terms of section 246(m) challenging the levy of interest under section 216 of the Act, though an appeal had been filed on some other grounds. These aspects have not been taken note of by the Tribunal. The answer to the question referred is in the negative in favour of the Revenue and against the assessee.
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