TMI Blog1996 (8) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of sections 37(3A) and 37(3B) of the Income-tax Act, 1961, the Tribunal has not erred in law in holding that expenditure of the nature mentioned in section 31 was not to be taken into account in working out the disallowance under section 37(3A) of the Income-tax Act, 1961 ? 2. Whether, on the facts and in the circumstances of the case and in view of the Explanation 2 to section 43B of the Income-tax Act, 1961, the Tribunal was justified in law in directing the Assessing Officer to allow the claim for the amount of Rs. 4,82,737, if the payment was found to have been made before July 31, 1984, though the relevant previous year ended on June 30, 1984 ? " The facts for answering the above questions are : The assessee is a company incorporated under the Companies Act. The Assessing Officer initiated proceedings under section 217(1A) in the course of the assessment proceedings for the assessment years 1984-85 and 1985-86 and levied interest amounting to Rs. 4,72,888 and Rs. 7,57,820, respectively. On appeal before the Commissioner of Income-tax (Appeals), he after hearing the parties held that no interest could be imposed under section 217(1A) and allowed the appeal. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Commissioner of Income-tax (Appeals). Hence, the present reference. Heard Mr. G. K. Joshi, learned senior standing counsel appearing for the Revenue, and Dr. Saraf, learned counsel on behalf of the assessee. Learned counsel for the parties submit that the two questions referred at the instance of the Revenue are squarely covered by two decisions of this court. The first question is covered by decision in I. T. R. No. 9 of 1994 George Williamson (Assam) Ltd. v. CIT [1997] 223 ITR 203 (Gauhati), decided on August 21, 1996, and the second question is covered by another decision of this court in CIT v. Bharat Bamboo and Timber Suppliers [1996] 219 ITR 212. As per the decisions referred to above learned counsel for the parties submit that both the questions may be answered in the affirmative and in favour of the assessee. We have perused the decisions. Considering the submission of learned counsel appearing on behalf of the parties, we answer both the questions referred at the instance of the Revenue, in the affirmative and in favour of the assessee and against the Revenue. We have also heard regarding the question referred at the instance of the assessee. Dr. Saraf, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-tax (Appeals). Section 217(1A) of the Act provides that interest will be payable by the assessee when no estimate is made. The section provides that if the Assessing Officer finds that any person who is required to send an estimate under sub-section (4) of section 209A or any such person as is referred to in sub-section (3A) of section 212 has not sent the estimate referred to therein, simple interest at the rate of fifteen per cent. per annum from the 1st day of April next following the financial year in which the advance tax was payable in accordance with the said sub-section (4) or as the case may be, sub-section (3A) up to the date of the regular assessment, shall be payable by the assessee upon the amount by which the advance tax paid by him falls short of the assessed tax as defined in sub-section (5) of section 215. Section 215, however, makes provision for levying interest in case the advance tax is paid 83.33 per cent. in case of company and 75 per cent. in other cases less than the tax assessed in regular assessment. It is true that the requirement of conditions under section 215 and under section 217(1A) are widely different. The pre-requisite conditions under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome-tax Appellate Tribunal is wide enough to pass any order. As per section 254, the Appellate Tribunal may, after giving an opportunity of hearing, pass such order thereon as it thinks fit. Relying on this, Mr. Joshi submits that it was open for the Tribunal that when it noticed that section 217(1A) was not applicable, in the facts and circumstances and the intention was to proceed under section 215, no fault can be found in the order of the Tribunal. In this connection, Mr. Joshi has drawn our attention to a decision of the apex court reported in Hukumchand Mills Ltd. v. CIT [1967] 63 ITR 232. In the said decision, the apex court, held that the Tribunal could pass any order in respect of an appeal on the subject-matter arising thereon. The apex court also observed the expression "thereon" restricts the jurisdiction to the subject-matter of the appeal. Taking the support of the decision, Mr. Joshi submits that the subject-matter was before the Tribunal and, therefore, the Tribunal was fully competent to remand the matter. Dr. Saraf, however, refutes the said submission of Mr. Joshi and submits that in the facts and circumstances of the case, the Tribunal was not justified in rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the Appellate Tribunal comes to deal with the matter, the law regards it sufficient to leave it to the parties going up as appellants before the Tribunal to limit their attack on the order of the first appellate authority and to seek the intervention of the Tribunal only to the extent necessary to correct the errors in the order of the Appellate Assistant Commissioner according to the case of the appellant. " It was further observed by the Mysore High Court as under : " Uniform judicial interpretation placed on these powers is that the power of remand should be used sparingly and ordinarily only in cases where the appellate authority, after an examination of the material already placed on record by way of evidence, takes the view that it is not possible for it to make a just order on the appeal without the assistance of further evidence or without the assistance of a clearer finding by the authority from whose order the appeal has been presented. That implied limitation on the power of remand is directly related to the principle of justice that parties interested in obtaining an order from a court or Tribunal are under a duty to place before the original authority all the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the Tribunal in invoking the power to amend the section. However, the Tribunal did not discuss and give any reason as to why in the facts and circumstances of the case, power under section 215 should be invoked. The Tribunal in the last paragraph 13 has observed thus : " After careful consideration of the entire facts and circumstances of the case and in view of the provisions of section 292B of the Act, we consider that the matter is to be reconsidered by the Assessing Officer and as such, we restore back the matter to him after setting aside the order of the learned Commissioner of Income-tax (Appeals). " Therefore, in our opinion, the matter requires to be reconsidered by the Assessing Officer. No reason have been given and as such it is difficult for this court to give a proper answer to these questions. The Tribunal may decide the matter itself and may come to a definite conclusion and thereafter if necessary may pass any appropriate order. In view of the above, without answering the question, we remand the matter to the Tribunal to consider the matter afresh and to decide as to the existence of the conditions necessary for invoking the section 215 of the Act and if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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