TMI Blog1979 (7) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... me determined, tax determined, advance tax paid and interest under s. 214 allowed by the ITO. --------------------------------------------------------------------------------------------------------------------------------------------------- Assessment Income Tax Advance Interest year determined determined tax paid allowed under s. 214 --------------------------------------------------------------------------------------------------------------------------------------------------- Rs. Rs. Rs. Rs. 1966-67 89,890 30,091 1,15,468 31,931 1967-68 4,05,610 2,85,160 1,13,886 - 1968-69 2,39,580 1,59,506 56,101 - --------------------------------------------------------------------------------------------------------------------------------------------------- From the above table, it would be clear that for the assessment years 1966-67, 1967-68 and 1968-69, the advance tax paid by the assessee was less than the tax payable by the assessee under these assessments. In accordance with the assessment so made, there was no scope for grant of any interest under s. 214 of the Act in favour of the assessee. The assessee appealed to the AAC against the income determined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Tribunal held that the assessee was not entitled to any interest beyond the date of the regular assessment which in this case was on 26th November, 1970. The Tribunal went also into the question whether the order of the ITO made on 20th July, 1971, was appealable or not. It held that the order dated 20th July, 1971, in so far as it related to the refusal to grant interest under s. 214, was not appealable. Therefore, the order of the AAC was set aside, and it was held that no interest was payable on the basis of the AAC's order reducing the quantum of income for all these years. This order of the Tribunal has given rise to the questions already extracted. The first point that requires to be considered is the nature of the order passed by the ITO on 20th July, 1971. Is it an order of " regular assessment " or not? This order, it may be seen, came to be passed as result of the order of the AAC, interfering with the assessment, made in the appeals filed by the assessee before him. The order of the AAC for these three years have become final. As a result of the order of the AAC, large amounts of refund were due to the assessee. The ITO in passing the order dated 20th July, 1971, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pursuant to the directions of the Appellate Tribunal under s. 33(4). Similarly, the Punjab High Court in Gopi Lal v. CIT [1967] 65 ITR 477, held that an appeal lay to the AAC against the order of the ITO made in pursuance of a direction of the Appellate Tribunal given under s. 33(5) of the Indian I.T. Act, 1922. Though both these decisions arose under the Indian I.T. Act, 1922, there is no difference in the provisions of the 1961 Act to make a difference in the approach to the problem. Section 23 of the Indian I.T. 1922, has its parallel in s. 143 of the I.T. Act, 1961. The provisions are substantially the same. The powers of the AAC are substantially the same in both the Acts. Though, the two decisions had to deal with situation arising as a result of the order of the Appellate Tribunal, that would not also make a difference, as the nature of the order passed by the ITO would be the same. The result is that these two decisions would apply to the determination of the nature of the order passed by the ITO in a case like this. We agree with these decisions. Therefore, the order passed by the ITO would have to be taken as one passed under s. 143. The ITO has not also been given any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for payment of further interest up to the date on which the refund was actually made. The result is that the assessee would be eligible for receiving interest from the first day of April next following the financial year up to the date of the regular assessment and also further interest up to the date on which refund was made. We have already mentioned that ss. 215 to 217 relate to cases of interest payable by the assessee. Section 215 provides for payment of interest by the assessee where he paid advance tax on the basis of his own estimate and the advance tax paid was less than 75% of the assessed tax. Section 216 relates to cases where the ITO finds that any assessee had underestimated the advance tax payable and thereby reduced the advance tax payable by him in the first two instalments. It provides also for cases where the assessee had wrongly deferred the payment of advance tax on part of his income, which he could under s. 213. Section 217 refers to cases where the assessee had not paid any advance tax. As far as the calculation of interest under s. 214 is concerned, it could be made at the time of regular assessment. The interest payable by the assessee under ss. 215 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the ITO could not be the subjectmatter of an appeal to the AAC. This question came to be considered in some earlier decisions of this court. In South India Flour Mills P. Ltd. v. CBDT [1968] 70 ITR 863, this court had to deal with a petition under art. 226 of the Constitution to quash the order of the Central Board. , In that case, the, assessee was charged " penal " interest under s. 18A(6) of the Indian I.T. Act, 1922, for the assessment year 1959-60. Against the charging of interest, the assessee filed an application for revision before the Commissioner, who dismissed the revision petition on a technical ground. Thereafter, the matter was taken to the CBDT which also apparently declined to interfere. When the matter was brought before this court in writ proceedings, a Bench of this court considered the question whether there was a right of appeal against the determination of interest under s. 18A(6). It was held that s. 30 of the Act provided for an appeal against specific orders and did not make a mention of s. 18A(6). In the view of this court, a revision petition to the Commissioner under s. 33A(2) was competent from an order levying interest under s. 18A(6). Subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the ITO on 20th July, 1971. In the light of the decisions of this court and also of the Calcutta High Court, to which reference has been made above, it will be clear that the assessee could not have agitated only this claim, as regards the interest in the appeal, before the AAC. There is and can be no dispute as to the actual amount. The calculation of interest would have to only follow on the language of s. 214. The assessee should have gone on revision to the Commissioner. The assessee pursued a wrong remedy by filing an appeal before the AAC. The remedy available to the assessee would only be under s. 264 of the I.T. Act. Sub-section (4) of s. 264 provides for cases where the Commissioner could not revise an order in certain cases. One of those orders is, where an appeal lies to the AAC or to the Appellate Tribunal but has not been made and the time within which such appeal may be made has not expired, or in the case of an appeal to the Tribunal, the assessee has not waived his right of appeal. In the present case, as we have already seen, an appeal could not have been filed before the AAC. The assessee could have challenged the order dated 20th July, 1971, before the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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