2012 (6) TMI 359 - HC - Income Tax

Maintainability of Revision petition u/s 264 for waiver of interest u/s 234B when the same has not been raised in the appeal before first appellate authority - Held that - Bar u/s 264(4)(c), which imposes an absolute prohibition against access of revisional jurisdiction, comes into operation and applies when the assessment order is made subject matter of challenge before the appellate authority. It does not matter whether a particular aspect or issue is challenged or whether a particular relief has not been prayed for. The order of the Assessing Officer cannot be divided into two parts with one part being made subject matter of challenge before the appellate authority and the other part being made subject matter of challenge under the revisional jurisdiction. Section 264(4)(c) does not permit such bifurcation - Petition dismissed.

Issues:
1. Challenge to assessment order regarding speculative loss under Section 73 of the Income Tax Act.
2. Refusal of the tribunal to entertain appeal on the levy of interest under Section 234B.
3. Filing of a revision petition under Section 264 for waiver of interest under Section 234B.
4. Interpretation of Section 264(4)(c) regarding revisional jurisdiction.
5. Failure to raise the issue of interest under Section 234B before the first appellate authority.
6. Observations on the assessment process and the issuance of demand notice under Section 156.
7. Dismissal of the writ petition challenging the jurisdictional Commissioner's order.

Analysis:

1. The assessment order for the assessment year 1997-98 included an addition of Rs.37,40,568 on account of speculative loss under Section 73 of the Income Tax Act. Subsequently, interest under Section 234B was levied due to the additions made. The order was challenged before the Commissioner of Income Tax (Appeals) and the Income Tax Appellate Tribunal, which refused to entertain the appeal on the interest levy issue as it was not raised before the first appellate authority.

2. The assessee later filed a revision petition under Section 264 seeking waiver of interest under Section 234B. However, the jurisdictional Commissioner dismissed the petition citing Section 264(4)(c) of the Act, which prohibits revisional jurisdiction when the assessment order is already challenged before the appellate authorities. The Commissioner rightly noted that the assessment order encompasses both the Assessing Officer's order and the computation sheet forming the basis of the demand.

3. The prohibition under Section 264(4)(c) applies regardless of whether specific aspects were challenged or relief was sought. The Act does not allow bifurcation of the assessment order for separate challenges. The petitioner could have raised the interest issue during the appeal process but failed to do so before the first appellate authority, leading to the tribunal's dismissal of the ground raised.

4. The Supreme Court's precedent in Kalyan Kumar Ray versus CIT highlights that assessment involves both determining total income and tax calculation, with the latter being crucial. The issuance of a demand notice under Section 156 is part of the assessment process, and the statute does not mandate both income computation and payable sum determination on the same document.

5. The court found no flaw in the jurisdictional Commissioner's decision and dismissed the writ petition challenging the order. While not expressing an opinion on alternative remedies available to the petitioner, the court upheld the Commissioner's ruling, emphasizing the importance of raising all relevant issues during the appropriate stages of the appeal process.

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