1990 (3) TMI 368 - HC - Income Tax

Summary

Issues Involved:
1. Justification of the Tribunal's upholding of the order passed by the Commissioner of Income-tax u/s 263 of the Income-tax Act, 1961.
2. Applicability of section 215 of the Income-tax Act, 1961 to the instant case.

Summary:

Issue 1: Justification of the Tribunal's Upholding of the Order u/s 263
The Tribunal upheld the Commissioner of Income-tax's order u/s 263, which found the assessment order by the Income-tax Officer (ITO) to be erroneous and prejudicial to the interests of the revenue. The Commissioner issued a notice to the assessee to show cause for not revising the assessment order, which did not charge interest under section 215. The assessee's objections included the doctrine of merger, waiver of interest by the ITO, and pendency of proceedings u/s 154. The Tribunal dismissed these objections, stating that the doctrine of merger did not apply, and no inference of waiver could be drawn without a specific order. The Tribunal emphasized that the liability to pay interest u/s 215 is automatic and unqualified, and the pendency of proceedings u/s 154 does not bar the invocation of jurisdiction u/s 263.

The High Court, however, found merit in the assessee's argument that section 263 applies only where an order has been passed by the ITO. Since the ITO did not pass an order charging interest u/s 215, the Commissioner could not compel the ITO to pass such an order. The Court noted that the assessment order under section 143(3) does not include the levy of interest, which is determined after the assessment is completed. Thus, the Commissioner's action to revise the assessment order for not charging interest u/s 215 was beyond the scope of section 263.

Issue 2: Applicability of Section 215
The Tribunal held that section 215 was applicable as the assessee filed a valid estimate of income and paid advance tax, albeit less than the estimated amount. The Tribunal noted that short payment of advance tax on the basis of the assessee's estimate falls within the ambit of section 215. The High Court, however, declined to answer this question due to the resolution of the first issue in favor of the assessee.

Conclusion:
The High Court answered question No. 1 in the negative, in favor of the assessee, and declined to answer question No. 2. There was no order as to costs.