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Issues: Competency of appeal against the levy of penal interest under section 139(8) of the Income Tax Act.
Analysis: The case involved an HUF assessed for the year 1967-68, with penal interest charged by the ITO under section 139(1) of the Income Tax Act. The assessee appealed to the AAC, who dismissed it stating no appeal lay on the point without considering the merits. The assessee then approached the Tribunal, which allowed the appeal, leading to the question of whether the appeal was competent being referred to the High Court. The court examined the provisions of section 139(8) of the Act, which stipulates the liability to pay simple interest if the return is furnished after the specified date, emphasizing that the right of appeal is a creature of the statute. The court highlighted that an appeal would be competent if the challenge to the order includes the liability to pay penal interest linked with the quantum of tax. However, if the appeal does not fall within the ambit of specific provisions, like section 246(1)(c), an appeal against an order passed under section 139(8) simpliciter would not be competent. The court cited precedents from Gujarat, Madras, and Bombay High Courts to support this interpretation. The court noted that the Tribunal erred in relying on a Supreme Court decision in CIT v. Kanpur Coal Syndicate, emphasizing that the denial of liability must be comprehensive, including the liability to pay tax under particular circumstances for an appeal to be maintainable. The court clarified that if the payment of penal interest is challenged without contesting the liability to pay tax, section 246(1)(c) of the Act would not be applicable, rendering the appeal incompetent. The judgment answered the question in the negative, favoring the revenue and against the assessee, with no representation from the assessee resulting in no order as to costs. Judge Gokal Chand Mital concurred with the judgment.
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