2012 (10) TMI 883 - HC - Income Tax

Rejection of revision application u/s 264 - Notice - Penal interest under Sections 215 and 139(8) of the Act - On completion of the assessment of M/s K. and Company where the petitioner s share was determined assessee moved an application dated 16.7.1988 to respondent No.2 for passing the rectification order under Sections 154/155 of the Act Held that - Rectification order has been passed on an application of the assessee. He cannot complain against the order by reason only of the fact that there was no notice to him for levying the interest - assessee had himself filed the application and interest under Sections 215 and 139(8) of the Act for default in paying advance tax is mandatory and is imposable where the assessee is liable to pay advance tax - no separate notice under sub-section (3) of Section 154 of the Act was, thus, required to be issued and no benefit can be derived by him on that count. To conclude, the assessee could not escape from the liability to pay interest and no fault could be noticed in the order of the Commissioner rejecting the petition of the assessee filed under Section 264 of the Act - petition dismissed

Summary

Issues Involved:
(a) Whether an order passed by the Assessing Officer under Sections 154/155 of the Act entitles him to charge interest under Sections 215 and 139(8) of the Act, when the same had not been levied at the time of passing of regular assessment on 29.1.1988?
(b) Whether the order levying interest under Sections 215 and 139(8) of the Act while passing the order under Section 154 of the Act could be validly passed without adhering to the requirement of notice under sub-section (3) of Section 154 of the Act?

Detailed Analysis:

Issue (a): Charging Interest under Sections 215 and 139(8) in Rectificatory Order
Relevant Provisions:
- Section 215(1) imposes a liability on the assessee to pay interest where advance tax paid is less than seventy-five percent of the assessed tax.
- Section 215(3) allows for the increase or reduction of interest as a result of an order under specified sections, including Section 154.

Court's Reasoning:
- The regular assessment order dated 29.1.1988 did not levy interest under Sections 215 and 139(8) as the advance tax paid exceeded the tax liability.
- The order was subject to rectification under Sections 154/155 due to the share income from the firm M/s K. & Co.
- Upon rectification on 29.9.1988/3.10.1988, the shortfall in advance tax payment led to the imposition of interest under Sections 215 and 139(8).
- The rectificatory order is considered a regular assessment order, and the Assessing Officer is authorized to levy interest accordingly.
- The statutory liability to pay interest under Section 215 arises directly from non-payment of the requisite advance tax.

Conclusion:
The court concluded that it was within the scope of the Assessing Officer to levy interest under Sections 215 and 139(8) in the rectificatory order as the liability arose due to the rectification of the income.

Issue (b): Validity of the Order without Notice under Section 154(3)
Relevant Provisions:
- Section 154(3) mandates the issuance of notice before creating or enhancing any liability through an order of rectification.

Court's Reasoning:
- The assessee had filed an application for rectification under Sections 154/155, leading to the rectificatory order.
- Interest under Sections 215 and 139(8) is mandatory for default in paying advance tax.
- Since the rectification was initiated by the assessee, the requirement of a separate notice under Section 154(3) was deemed unnecessary.

Conclusion:
The court held that no separate notice under Section 154(3) was required in this case, as the rectification was based on the assessee's application, and the liability to pay interest was mandatory.

Final Judgment:
The court dismissed the petition, finding no merit in the arguments presented by the petitioner. The levy of interest under Sections 215 and 139(8) in the rectificatory order was upheld, and the lack of a separate notice under Section 154(3) was not considered a valid ground for challenging the order.