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Issues Involved:
1. Competency of the appeal before the AAC regarding the levy of penal interest under Section 215. 2. Jurisdiction of the AAC to waive or reduce penal interest under Rule 40 of the IT Rules, 1962. Detailed Analysis: Competency of the Appeal Before the AAC: The primary contention raised by the Department was that the AAC should not have entertained the appeal regarding the levy of penal interest under Section 215, as the Act does not specifically provide for such an appeal. The Department cited several High Court decisions to support this view, arguing that the AAC lacked the authority to entertain an appeal solely on the grounds of penal interest. In response, the assessee's counsel argued that the appeal was competent because the assessee disputed the very liability to be assessed to penal interest. The counsel referred to decisions by the Karnataka High Court in National Products vs. CIT and the Bombay High Court in CIT vs. Daimler Benz A.G., which held that an appeal could be entertained if the assessee denied liability to pay penal interest. The Tribunal examined various judicial decisions and concluded that the appeal to the AAC was competent and rightly entertained. The Tribunal cited the Karnataka High Court's observation that "levy of penal interest under s. 139 or s. 215 is part of the assessment" and that if an assessee denies liability to be assessed under the Act, an appeal is permissible. The Tribunal also referenced the Bombay High Court's view that an appeal would lie if the assessee denies liability to pay penal interest, but not if the appeal only challenges the quantum of penal interest. The Tribunal noted that the Gujarat case relied upon by the Revenue did not help their argument, as it was based on the law prior to amendments that allowed for the reduction or waiver of penal interest. The Tribunal concluded that the AAC was correct in entertaining the appeal, as the assessee had denied the liability to pay penal interest, making the appeal under Section 246(c) valid. Jurisdiction of the AAC to Waive or Reduce Penal Interest: The second issue was whether the AAC had the jurisdiction to waive or reduce penal interest under Rule 40 of the IT Rules, 1962. The Department argued that only the ITO had the power to reduce or waive penal interest under Rule 40, and therefore, the AAC exceeded his jurisdiction by directing the waiver of interest for the period from April 1973 to the date of assessment. The Tribunal found that the AAC had examined the facts in light of Rule 40 and concluded that the interest should be waived for the specified period. The Tribunal noted that the ITO had directed in the assessment order that interest should be charged according to the rules, but had failed to apply Rule 40 when levying the interest. The AAC merely corrected this omission. The Tribunal emphasized that in an appeal, the AAC has the authority to do all that the ITO is empowered to do, provided it does not travel outside the scope of the assessment. The AAC had not usurped jurisdiction but had acted within his powers to correct the ITO's omission by applying Rule 40. The Tribunal stated that the AAC's order was not an order under Rule 40 but a correction of the ITO's failure to apply the rule. The Tribunal also highlighted that the facts and conclusions reached by the AAC were not challenged by the Department, making the Department's argument about jurisdiction a mere technicality that would unnecessarily prolong litigation. Conclusion: The Tribunal dismissed the Departmental appeal, affirming that the AAC was right in both entertaining the appeal and directing the waiver of penal interest for the specified period. The Tribunal concluded that the appeal was competent and that the AAC acted within his jurisdiction to correct the ITO's omission, thereby reducing the penal interest as per Rule 40 of the IT Rules, 1962.
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