TMI Blog1976 (2) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,28,260.40. In making the computation, however, the Income-tax Officer refused to allow interest payable on the sum paid by the petitioner and refused the claim for interest made by the petitioner under section 214 and section 244 of the Income-tax Act, 1961. The said computation was made by the Income-tax Officer on January 12, 1972. Aggrieved by the aforesaid order, the petitioner made an application for revision under section 264 of the Income-tax Act, 1961, to the Commissioner of Income-tax, claiming interest of Rs. 48,280 under section 244 and Rs. 23,752 under section 214 of the Income-tax Act, 1961. The Commissioner passed an order on November 7, 1912, and allowed the claim for interest under section 244 of the Act but rejected the claim for interest under section 214. In passing the said order, the Commissioner observed, inter alia, as follows : " An assessee is entitled to receive interest under section 214 when on a regular assessment it is found that the advance tax paid by the assessee exceeds the tax determined on assessment. In the present case no part of the advance tax became refundable to the assessee on the basis of the regular assessment made on December 19, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which an appeal lay. This was rejected by the Division Bench which held that where pursuant to the direction of the Appellate Tribunal in an order under section 33(4) of the Indian Income-tax Act, 1922, to revise or amend the assessment made by the Income-tax Officer, the Income-tax Officer revised the assessment, the order passed by the Income-tax Officer took the character of a fresh assessment order and was only referable to section 23 of the Indian Income-tax Act, 1922, which corresponds to sections 143 and 144 of the Income tax Act, 1961. It was, accordingly, held that an appeal would lie under section 30 of the old Act against such order of the Income-tax Officer. Therefore, it appears that an order which is passed by the Income-tax Officer to give effect to the order of the Appellate Assistant Commissioner is a order of assessment under section 143 of the Income-tax Act, 1961. If that is the position then, in view of section 2(40) of the Act, the regular assessment as contemplated by sub-section (1) of section 214 should be assessment made by the Income-tax Officer initially or the first assessment made by the Income-tax Officer if there is no appeal therefrom, but in case t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This would seem to be an anomalous situation and unless the language of the section compels one to make that construction, one should avoid making that construction. It has to be borne in mind that the expression " regular assessment " has been used in several sections. In all the sections similar meaning should be given to that expression unless the context otherwise demands. Having regard to the scheme of the sections I am of the opinion that the context does not require otherwise. Regular assessment is certainly different from the first assessment or provisional assessment. But regular assessment is not confined to first assessment. When an assessment is modified pursuant to the order of the appellate authority or direction, the subsequent order will be regular assessment and must supersede and replace the earlier assessment order. Having regard to the scheme of the Act and the context in which the expression has been used, in my opinion, regular assessment under section 214 would include in the particular facts and circumstances of the case an assessment made by the order of the Income-tax Officer pursuant to the direction of the Appellate Assistant Commissioner. On behalf o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h did not contain the definition of regular assessment as provided for in section 2(40) of the Income-tax Act, 1961. Relevant provision of section 18A of the 1922 Act provided for payment of interest from the date of payment to date of provisional assessment made under section 23B and if no such assessment was made, to the date of assessment referred to as regular assessment made under section 23 of the Income-tax Act, of incomes, profits and gains of the previous year. Reliance was also placed on the decision in the case of Gopalaswami Mudaliar v. Fifth Additional Income-tax Officer [1963] 49 ITR 322 (Mad.). There the Madras High Court observed that where an assessee had failed to submit any return of income during the relevant assessment year and an assessment was for the first time made on him under section 34(1)(a) read with section 23, interest under section 18A(6) might be charged for failure on the part of the assessee to pay advance tax in accordance with section 18A(3). In cases where no return was submitted by the assessee the expression " regular assessment " in section 18A(6) referred to an assessment made under section 23 after the issue of a special notice under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the question as to the tax determined on the regular assessment. The context in which the expression " the date of assessment, hereinafter referred to as regular assessment " had been used was different. Therefore, the observation of the courts in the three cases referred to hereinbefore in my opinion cannot be availed of on the construction of the expression " regular assessment " in sub-section (1) of section 214 of the Income-tax Act, 1961, specially in view of the definition provided by sub-section (40) of section 2 of the Act. Counsel for the revenue contended that Parliament should be deemed to have known the interpretation and when in that context had used the expression " regular assessment " in sub-section (1) of section 214, it must have meant the initial assessment. I am unable to accept this contention. Firstly, there was no judicial interpretation of the expression " regular assessment " as such. What was interpreted was the date of the assessment referred to as the " regular assessment " for the purpose of section 18A(5) of the Indian Income-tax Act, 1922. Knowing the said interpretation when in the new Act Parliament has deliberately chosen to define the regular as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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