1988 (12) TMI 47 - HC - Income Tax

Summary

Issues Involved:
1. Discretionary nature of charging interest u/s 216.
2. Requirement of a finding by the Income-tax Officer (ITO) for charging interest u/s 216.
3. Legality of the Tribunal's decision to set aside the ITO's order and remit the matter for fresh consideration.

Summary:

Issue 1: Discretionary Nature of Charging Interest u/s 216
The Tribunal held that charging interest u/s 216 of the Income-tax Act, 1961, is discretionary. The ITO must apply his mind to the facts and circumstances of the case and find that the assessee underestimated the advance tax payable, thereby reducing the amount payable in either of the first two instalments. The Tribunal found no evidence that the ITO had applied his mind before levying interest. The court affirmed this view, stating that the provisions for charging interest u/s 216 are discretionary, not mandatory.

Issue 2: Requirement of a Finding by the ITO for Charging Interest u/s 216
The Tribunal asserted that the ITO must find that the assessee underestimated the advance tax payable and reduced the amount payable in either of the first two instalments before directing the payment of interest u/s 216. The court agreed, emphasizing that the ITO must record reasons and provide evidence that the assessee underestimated the advance tax. Without such a finding, the assessee cannot be charged interest u/s 216.

Issue 3: Legality of the Tribunal's Decision to Set Aside the ITO's Order and Remit the Matter for Fresh Consideration
The Tribunal set aside the ITO's order charging interest and remitted the matter for fresh consideration. The court referred to a previous decision in Hindusthan Sanitary Ware and Industries Ltd. v. CIT, where it was held that the Tribunal should not remand the matter if the ITO failed to make the necessary findings initially. The court concluded that the Tribunal was not justified in remanding the matter for fresh consideration, as the ITO did not satisfy the conditions precedent for exercising power u/s 216. The Tribunal should have decided the issue based on the existing record.

Conclusion:
The court answered the first and second questions in the affirmative, in favor of the assessee, and against the Revenue. The third question was also answered in favor of the assessee, stating that the Tribunal was right in holding the levy of interest u/s 216 as bad in law but was not justified in remanding the matter to the ITO for fresh consideration. There was no order as to costs.