TMI Blog1982 (9) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... x in terms of sub-section (3A) of section 212 of the Act. On verification it has been found by the learned Commissioner (Appeals) that the assessee had, in fact, filed the said estimate and, therefore, interest in terms of sub-section (1A) of section 217 could not be charged from the assessee and yet instead of quashing the said interest, he has sustained it on the ground that interest was chargeable from the assessee under section 215 for paying tax less than 75 per cent of the assessed tax on the basis of its own estimate of advance tax and for this purpose he has invoked the powers vested in the ITO under section 215. According to the assessee's learned counsel, the power to charge interest vested in the ITO and the learned Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthiala v. ITO [1961] 41 ITR 12, wherein their Lordships have held, inter alia, that 'the exercise of a power would be referable to a jurisdiction which conferred validity upon it and not to a jurisdiction under which it would be nugatory'. According to the learned departmental representative, the learned Commissioner (Appeals) was, in view of the above ratio, justified in correlating the power of the ITO to the jurisdiction which would confer validity upon it and, therefore, when he changed the section from 217(1A) to section 215, he did but the right thing and we should not, therefore, interfere with his order. 3. In rejoinder, the assessee's learned counsel drew our attention to the notice under section 154 of the Act issued by the ITO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey apply to interest payable under section 215. Section 215(1) provides as follows : " Where, in any financial year, an assessee has paid advance tax under section 212 on the basis of his own estimate, and the advance tax so paid is less than seventy-five per cent of the assessed tax, simple interest at the rate of twelve per cent annum from the 1st day of April next following the said financial year up to the date of the regular assessment shall be payable by the assessee upon the amount by which the advance tax so paid falls short of the assessed tax. " Sub-section (2) of section 215 may also be noted at this stage. It reads as follows : " Where before the date of completion of a regular assessment, tax is paid by the assessee under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause the working of interest under sub-section (1A) of section 217 has been made subject to the provisions of sub-section (2) to sub-section (5) of section 215. In the present case, the ITO had, without doubt, charged interest from the assessee-company in terms of sub-section (1A) of section 217. On appeal, however, the learned Commissioner (Appeals) held that interest was payable by the assessee not for not filing the estimate of advance tax, but for not paying tax in accordance with his estimate and inasmuch as the advance tax paid was less than 75 per cent of the assessed tax, interest was chargeable under section 215(1) and as, in his opinion, the ITO had proper jurisdiction to charge interest in terms of section 215(1), he could core ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant time) reads as follows : " If any assessee has sent under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (3A) of section 212 an estimate or a revised estimate of the advance tax payable by him, but does not pay any instalment in accordance therewith on the date or dates specified in section 211, he shall be deemed to be an assessee in default in respect of such instalment or instalments : " The learned Commissioner (Appeals) has apparently omitted to take note of the above provision. The situation with which the ITO was faced in the present case at the time of making regular assessment was not that of the assessee not having filed the estimate of advance tax under sub-section (3A) of section 212 nor was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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