TMI Blog2020 (10) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... st the order of the Assessing Officer and particularly levying the interest under section 220(2) in pursuant to the order/judgment of the appellate forum. Commissioner of Income-tax relied upon the judgment of ANZ Grindlays Bank PLC [ 1999 (8) TMI 29 - CALCUTTA HIGH COURT] whereas the learned authorised representative of the assessee has relied upon a series of decisions of other High Courts in support of his contention. So far as the recomputation of the total income of the assessee AO has not passed any order or decided any issue but he has simply computed the total income as it was determined while passing the original assessment order. Therefore, to that extent the said order AO cannot be regarded as a decision of the Assessing Officer which can be challenged in the appeal until and unless some calculation mistake or typographical mistake occurred which can be rectified under section 154 of the Income-tax Act. Computation of Income-tax liability of the assessee in pursuant to the said order certainly increased the demand which was raised at the time of original assessment order passed under section 143(3) and further since after the order of the Tribunal there was no d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 220(2) in ITNS 150, i. e., section 143(3) read with section 260A while giving appeal effect of the order of the hon'ble Rajasthan High Court. The action of the learned Assessing Officer is illegal, unjustified and arbitrary and against the facts of the case. Relief may please be granted by quashing the said charge of interest of ₹ 13,63,760. 3. In the facts and in the circumstances of the case and in law the learned Commissioner of Income-tax has erred in charging interest of ₹ 4,43,248 under section 234D in ITNS 150, i. e., section 143(3) read with section 260A while giving appeal effect of the order of the hon'ble Rajasthan High Court. The action of the learned Assessing Officer is illegal, unjustified and arbitrary and against the facts of the case. Relief may please be granted by quashing the said charge of interest of ₹ 4,43,248. 4. In the facts and in the circumstances of the case and in law the learned Commissioner of Income-tax has erred in charging interest of ₹ 1,86,479 under section 244A in ITNS 150, i. e., section 143(3) read with section 260A while giving appeal effect of the order of the hon'ble Rajasthan High Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, the Assessing Officer passed the giving effect order raising the demand along with the interest under sections 244A, 220(2) and 234D of the Income-tax Act. The details of the demand as well as interest raised by the Assessing Officer while passing giving effect order dated June 17, 2016 are as under : AY Balance demand Interest under section 244A Interest under section 220(2) Interest under section 234D Total payable 2002-03 11,18,684 1,86,479 13,63,760 4,43,248 31,12,171 2003-04 19,71,966 4,53,552 27,32,800 10,78,073 62,36,391 2004-05 11,52,998 2,36,362 28,42,211 - 42,31,571 Total 42,43,648 8,76,393 69,38,771 15,21,321 The interest under section 244A is the amount which was ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest charged under section 220(2) is part of the assessment and is deemed to be tax for the purpose of section 246 of the Income-tax Act and consequently the appeal filed by the assessee against such order of the Assessing Officer objecting to the amount of interest is maintainable. The learned authorised representative has then relied upon the judgment of the hon'ble Calcutta High Court in the case of Kooka Sidhwa and Co. v. CIT [1964] 54 ITR 54 (Cal) and sub- mitted that the order passed by the Assessing Officer to give effect to the directions of the appellate authority is an appealable order as held by the hon'ble High Court. He has then relied upon the judgment of the hon'ble Bombay High Court in the case of Empire Industries Ltd. v. CIT [1992] 193 ITR 295 (Bom) ; 59 Taxman 443 (Bom) and submitted that the hon'ble Bombay High Court has also taken a similar view that the order passed by the Assessing Officer to give effect to the order of the appellate authority is an appealable order and the appeal filed by the assessee is maintainable. Similarly he has relied upon the hon'ble Andhra Pradesh High Court in the case of Bakelite Hylam Ltd. v. CIT [1988] 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under : Profit as per profit and loss account ₹ 7,02,72,801 Add : Depreciation for separate consideration ₹ 25,56,045 ₹ 7,28,28,846 Add : expenses disallowed- (i) Income-tax 84,28,958 (ii) Charity and donation 17,82,422 (iii) Delayed PF payment under section 1 35,081 (iv) Delayed PF payment under section 43B 39,786 (v) On account of telephone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80HHC and consequently the order of the Assessing Officer got restored. In pursuant to the judgment of the hon'ble jurisdictional High Court, the Assessing Officer has again computed the total income of the assessee vide order dated June 17, 2016 as under : So far as the computation of total income by the Assessing Officer in pursuant to the judgment of the hon'ble jurisdictional High Court, the income of the assessee remained the same as it was computed at the time of passing the original assessment order under section 143(3). Hence there is no dispute or grievance of the assessee against this recomputation of income as a result of the judgment of the hon'ble jurisdictional High Court. The Assessing Officer then also computed the Income-tax liability of the assessee on the total income and, therefore, the tax liability of the assessee is varied from as it was at the time of the original assessment order passed under section 143(3) due to the reason of levy of interest under section 220(2) as well as interest under section 234D of the Act though the Assessing Officer has also raised the demand by adding an amount on account of withdrawal of interest under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on whether the interest under section 220(2) will be reckoned from the original demand arising from the assessment order passed under section 143(3) or it will be reckoned from the giving effect order passed by the Assessing Officer to the judgment of the hon'ble High Court. This aspect requires application of mind and also to take a decision whether the interest under section 220(2) has to be levied for the period reckoning from the original demand till the recomputation of Income-tax as per the outcome of the finality of the dispute. Once the Assessing Officer has to take a decision regarding the reckoning of the period from which the interest has to be calculated on the outstanding demand then the said order of the Assessing Officer would certainly be challenged by filing appeal before the Commissioner of Income-tax (Appeals) under section 246 of the Income-tax Act. In the recent judgment in the case of Televista Electronics Ltd v. Dy. CIT (supra), the hon'ble High Court has held in paragraphs 14 to 18 as under (page 40 of 400 ITR) : In our opinion, in the present case, the appeal would be maintainable under clause (c) of section 246(1) of the Act. The said pro visio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere waiver and reduction is prayed. In the latter cases appeal is not maintainable, whereas in the former set of cases where the assessee claims that he is not liable to pay interest at all appeal would be maintain able and the plea as to non-liability to pay interest may be raised while disputing the assessment in appeal. However, more appropriate and direct on the point is the decision of the Bombay High Court in British Bank of the Middle East v. CIT [2003] 131 Taxman 106/204 ; [2004] 266 ITR 269 (Bom), wherein reference was made to section 246(1)(f) which was in parimateria to the clause applicable and it was held as under (page 273 of 266 ITR) : 'However, we find merit in the argument advanced on behalf of the assessee that appeal was maintainable under section 246(1)(f). For the sake of convenience, we reproduce hereinbelow section 246(1)(f) which reads as follows : 'Subject to the provisions of sub-section (2). Any assessee aggrieved by any of the orders of the Income-tax Officer may appeal against such order under section 144 (sic. 154) or section 155 having the effect of enhancing the assessment or reducing the refund or refusing to allow the claim made by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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