TMI Blog1992 (8) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellate authority. Another grievance which has been made out by the assessee in the cross objection is that the Appellate Commissioner erred in mentioning that it was the assessee's contention that, if necessary, the Assessing Officer could modify/refuse the amount of interest already paid under section 244(1A) by rectifying his order under which such interest was granted. 4. In order to appreciate and decide the controversies/grievances involved in the revenue's appeals as well as in the cross objections filed by the assessee few facts required to be narrated. They are as under : 5. While passing orders giving effect to the direction of the appellate authority the assessee-company took benefit of the Amnesty Scheme and filed returns on 31-3-1987 offering for taxation the gratuity liability on the basis of actuarial valuation, though the same was allowed by the Appellate Commissioner. In order to regularise these returns for the assessment years 1980-81 to 1982-83 (which are the years under appeal) the Assessing Officer issued notice under section 148 of the Income-tax Act. After issue of notices under section 143(2) fresh assessments were made for each of the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partmental representative supported the action of the Assessing Officer in withdrawing the interest under section 244(1A) which was already granted to the assessee-company. It is further submitted by him that though there is no provision under section 244(1A) to withdraw or increase or reduce the interest already granted yet it shall be assumed that the Assessing Officer impliedly had inherent power to withdraw, modify, increase or reduce interest already granted. He, therefore, strongly opposed the finding and direction of the Appellate Commissioner in the impugned order holding that the interest granted under section 244(1A) cannot be withdrawn by the Assessing Officer. Regarding the objections taken in the cross objections the depatmental representative submitted that the Appellate Commissioner was not wrong in saying that the Assessing Officer could rectify the order in order to modify/reduce the interest under section 244(1A) of the Act. In view of this submission the departmental representative strongly pleaded for the dismissal of the cross objections filed by the assessee -company. 7. Shri R.N. Bajoria, counsel for the assessee-company, submitted that the Appellate Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the Assessing Officer to reduce or increase the interest payable to the assessee under section 244(1A) clearly brings out the intention of the Legislature that whenever an interest is granted to any assessee under section 244(1A) then the same cannot be withdrawn or increased or reduced later under other proceedings. When such a power is totally lacking in section 244(1A) the action of the Assessing Officer cannot be supported on the ground that he possesses such implied and inherent power by assumption and presumption enabling him to withdraw interest already granted. The Appellate Commissioner is not justified in saying in the impugned order that if the Assessing Officer so desired he could rectify his order under which the interest was already granted. By saying so the Appellate Commissioner is instigating and directing the Assessing Officer to resort to the rectification provisions contained in the Income-tax Act which in law cannot be invoked on a debatable issue like the present one. Therefore, it is strongly urged by the assessee's counsel that the revenue's appeals be dismissed and the cross objections of the assessee be allowed. 8. We have heard the rival submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumed that the Assessing Officer possessed inherent and implied power under section 244(1A) to withdraw interest already granted to the assessee-company pursuant to earlier orders. It has been laid down by the Supreme Court in the cases of CST v. Modi Sugar Mills Ltd. [1961] 2 SCR 189 and Baidyanath Ayurved Bhawan (P.) Ltd. v. Excise Commissioner [1971] 2 SCR 590 at p. 592 that it is not permissible to make assumption and presumption in fiscal provisions. It is also a settled law by now that nothing should be read in or read out in a fiscal provision and that there is no room for any intendment in interpreting any provision of law particularly when it comes to interpretation of fiscal laws. In our view therefore, the Legislature has only empowered the Assessing Officer to grant interest under section 244(1A) but no such power has been conferred upon him to withdraw, reduce or increase the interest under the said provision by taking into account the reassessment proceedings as are found in the present case. We are inclined to take this view after perusing the provisions of sections 139(8), 215(3), 217(2), proviso to section 220(2) and the new provisions of sections 234A(4) and 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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