1984 (2) TMI 48 - HC - Income Tax

Summary

Issues Involved:
1. Whether the Commissioner of Income-tax should have directed the Income-tax Officer to modify the original assessment order by including any interest chargeable u/s 215 after duly considering the provisions of that section and rule 40(1).
2. Whether the Commissioner of Income-tax was entitled to pass an order u/s 263 to revise the assessment order and direct the Income-tax Officer to initiate proceedings for the imposition of penalty u/s 273(a) of the Income-tax Act, 1961.

Summary:

Issue 1: Interest u/s 215

The Tribunal held that the Commissioner of Income-tax was correct in directing the Income-tax Officer (ITO) to consider the provisions of section 215 and rule 40 when the ITO failed to charge interest under section 215. The Tribunal concluded that the omission of the ITO to charge interest was erroneous and prejudicial to the interests of the Revenue. The High Court agreed with this view, stating that the ITO must make a speaking order if he waives or reduces interest, as it is a quasi-judicial act requiring reasons. The Court emphasized that mere omission or inaction cannot be construed as waiver. The High Court overruled the decision in CIT v. Caxton Press (P.) Ltd., which had held otherwise, and affirmed that the Commissioner could direct the ITO to consider the levy of interest under section 215.

Issue 2: Penalty u/s 273(a)

On the question of whether the Commissioner could direct the ITO to initiate penalty proceedings under section 273(a), the High Court was divided. One judge followed the decisions in Addl. CIT v. D'Costa and Addl. CIT v. Achal Kumar Jain, which held that penalty proceedings are independent and separate from assessment proceedings, and thus, the Commissioner had no jurisdiction to direct the initiation of penalty proceedings under section 263. Another judge disagreed, citing decisions from the Madhya Pradesh High Court, which held that the Commissioner could revise the assessment order to direct the initiation of penalty proceedings. However, the majority opinion favored the view that penalty proceedings are distinct from assessment proceedings and that the Commissioner does not have the power to direct the initiation of penalty proceedings under section 263. Thus, the second question was answered in favor of the assessee and against the Revenue.