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TMI Blog1982 (3) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... n and challenged the appeal of the assessee on the ground of its maintainability. We have, therefore, heard the parties with regard to the maintainability of the appeal without going into the merits of the issues involved. According to the revenue, it is clear from the grounds of appeal that the assessee is challenging the levy of interest under section 220 of the Income-tax Act, 1961 ('the Act'). However, it was contended by Smt. Sudha Sharma, senior departmental representative arguing for the revenue, that no appeal is provided under the Act against the order passed by the ITO under section 220. As such, when the assessee went in appeal to the Commissioner (Appeals) and he maintained the appeal and passed an order thereon, he was acting illegally and the order made by him was, therefore, bad in law and non est. However, the order has to be annulled to restore the status quo ante. 3. On the other hand, the learned counsel for the assessee, opposing these submissions, contended that the preliminary objection taken by the revenue is not maintainable because the revenue is neither in cross-appeal nor in cross-objection. At best, it can support the order of the Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of sections 250 and 253(1) of the Act. It was contended that the revenue raised no objection when an appeal was filed before the Commissioner (Appeals) and he having disposed of the appeal filed before him, the assessee is having a vested right of appeal to the Tribunal under section 253(1). The appeal is, therefore, maintainable and should be heard on merits. 6. In the rejoinder, the learned departmental representative pointed out that the challenge to the maintainability of appeal was a question of law, and if no further enquiry on facts was necessary, it could be raised at this stage. It was further submitted that no enquiry on facts is necessary as there is no dispute on the relevant facts. She submitted that the Punjab and Haryana High Court has held in the case of CIT v. Raghubir Singh & Sons [1980] 125 ITR 256 that in case the appeal does not fall within the ambit of the provisions of section 246(1)(c), the appeal against an order passed under section 139(8) simpliciter will not be competent. It was also submitted that the concept of denial of liability to be assessed, propounded by the learned counsel for the assessee, was erroneous and untenable in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee, under section 220(2). 9. It appears that the assessee filed an application under section 273A of the Act before the Commissioner, Rohtak, and the Commissioner vide his order dated 4-2-1981 made under section 273A held that the amount of Rs. 11,45,229 added by the ITO to the total income of the assessee had been deleted by the Tribunal and, consequently, there is no demand of interest under section 215. But before this order was made by the Commissioner, Rohtak, the assessee had filed an appeal before the Commissioner (Appeals), Chandigarh, against the order of the ITO made under section 220(2) on 18-5-1979. Hence, the present proceedings. 10. We are aware that ordinarily, an appellant filing appeal against an order cannot be worse off and when we say this, we are conscious of the contentions raised by the learned counsel for the assessee that at best the revenue could support the order of the Commissioner (Appeals) under rule 27 of the Appellate Tribunal Rules. However, we are faced with a situation where the assessee has brought an order in appeal before us to which there is a challenge on the basis of its legality. Therefore, we are of the opinion that we cannot av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's case is covered under the phrase 'denies his liability to be assessed under this Act'. We find that denial of liability to be assessed under the Act, apparently, would pertain to the process of assessment. Insofar as the case of the assessee is concerned, the assessment had been finalised by the ITO on 20-3-1978 and after it had gone in appeal to the Tribunal, the assessee got necessary relief as per order of the Tribunal mentioned supra. Therefore, the assessee has already availed of the right of claiming that there was no liability of the assessee with regard to particular sums. The entire procedure gone through by the assessee shows that the assessee can deny liability to be subjected to any part of the procedure laid down in the Act for imposing the tax. In our opinion, the assessee's claim that he had denied his liability to be assessed is untenable, because interest under section 220 cannot be said to be tax and the imposition of interest is after the entire procedure laid down in the Act for imposing liability to tax is over. Interest is related to the amount specified in any notice of demand under section 156 after completion of such a process of assessment. 12. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clarified by the Court that a denial against being subject to part of the process of ascertaining and imposing liability, is not within the ambit of the section. 14. Their Lordships have, therefore, given a clear position of law that shows that even a part of the process of assessment cannot be challenged under the guise of denial of liability to be assessed. But we have held above, that levying interest under section 220, in our humble opinion, is not a part of assessment and as such the case of the assessee is on a worse footing than the one on the basis of which the High Court made the observations. 15. The Punjab High Court in the case of Raghubir Singh has held that the right of appeal is a creature of the statute and, therefore, in a case where there is no provision provided in the statute for filing an appeal regarding a particular matter, no appeal shall lie. We, therefore, find that the judgment of the Punjab High Court, relied on by the learned counsel for the assessee, is of no avail to him. 16. Now the issue before us is whether the appeal that was entertained by the learned Commissioner (Appeals) and on which he has made an order and which has come before us, shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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