TMI Blog1993 (10) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... sment year 1975-76, the petitioner submitted a return on July 31, 1975, declaring a total income of Rs. 6,28,695 and a revised return on November 5, 1976, declaring a total income of Rs. 6,36,989. On assessment, it was found that the total income of the petitioner for the relevant year was Rs. 7,30,140. The said order of assessment dated November 16, 1976, was again rectified under section 154 by an order dated April 13, 1977, and the total income was revised from Rs. 7,30,140 to Rs. 7,21,130. Thereafter, the Income-tax Officer issued a notice under section 154 for rectification of the assessment order on the ground that there was an error apparent on the face of the record inasmuch as no interest was levied under section 215. The petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Income-tax Officer at annexure "F", it becomes apparent that he proceeded on the basis that levy of interest when the advance tax paid by the assessee is less than 75 per cent. is mandatory under section 215 of the Act. Another reason given by the Income-tax Officer is that at the time of assessment, such interest was not levied through oversight. What is required to be noted is that the Income-tax Officer who had issued the notice under section 215 was quite different from the Income-tax Officer who had passed the assessment order. As the previous Income-tax Officer had not passed any order to levy interest at the time of passing the assessment order, the successor-Income-tax Officer thought that it was an oversight on the part of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded as bad. In that case, this court has specifically held that the power under rule 40 can be exercised by the Income-tax Officer even without being moved by an application by the assessee. On the other hand, the learned advocate for the Revenue drew our attention to the decision of this court in Income-tax Reference No. 54 of 1972 decided on December 17, 1973, wherein it is held that if no satisfaction as required by rule 117A of the Rules is to be found on the face of the record nor does it appear from the record, that previous approval of the Inspecting Assistant Commissioner was obtained before the Income-tax Officer passed the original assessment order, then it could not have been inferred that he had waived interest and it must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk it fit to introduce. For this reason, it must be held that the first ground given by the Commissioner in support of his view is not sustainable. As pointed out above, the second reason given by the Commissioner is that the Income-tax Officer could not have reduced or waived interest without reference to the higher authorities in view of the provision of sub-rule (5) of rule 40. If we turn to sub-rule (5), we do not find any such provision in that sub-rule. It reads as under : " (5) Any case in which the Deputy Commissioner considers that the circumstances are such that a reduction or waiver of the interest payable under section 215 or section 217 is justified." Thus, under this rule, the Deputy Commissioner (earlier, the Inspecting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return. From the language of this rule, the learned standing counsel for the Commissioner contended that up to the date of completion of one year from the date of the return the assessee was liable to pay interest and that only the subsequent delay in assess ment has to be examined to see whether it (the delay) was attributable to the assessee. If the delay was not attributable to the assessee, then for the period of one year from the date of the return, the assessee would, in his submission, have to pay interest. In other words, according to learned counsel, the question of exercise of discretion arose only after the period of one year from the date of the submission of the return. If that is so, then there was no need under sub-rule (5) o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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