9911796707
TMI Blog2003 (3) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee deposited an advance tax amounting to Rs. 8,45,625, resulting in a refund of Rs. 4,56,367. While giving appeal effect, the interest allowed under s. 214 and 244 of the Act by the AO was later on withdrawn on 13th Sept., 1996 by passing an order under s. 154 of the Act. The assessee preferred an appeal against this order under s. 154 but the CIT(A) declined to interfere into this order. 3. Feeling aggrieved, the assessee is in appeal before us. The assessee has raised two-fold pleas before us. Firstly, the assessee/appellant has taken the plea that provisions under which the AO has withdrawn the interest allowed to the assessee under ss. 214 and 244 at the time of giving appeal effect, by resorting to the amended provisions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -84 and 1984-85, the provisions of sub-s. (3) of s. 215 of the Act were not applicable to the interest paid on the refund by the Government, because the provisions of this section were amended w.e.f. 1st April, 1985, only and that these provisions were not made applicable with retrospective effect. According to the learned Authorised Representative, for the asst. yrs. 1983-84 and 1984-85, the amended provisions are not at all applicable and in any case, it would apply only to the asst. yr. 1985-86 onwards. 7. On the other hand, the learned Departmental Representative Smt. P.K. Janjua has supported the orders of the authorities below and has further submitted that the amended provision is in the nature of clarification so it would amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o w.e.f. 1st April, 1985, but again, we agree with the learned Authorised Representative that the provisions of s. 215 speak of interest payable by the assessee and not by the Government. Before parting from this issue, we would like to mention that still there is a lacuna in the provision which needs correction to meet out such exigencies. So we are of the considered opinion that in these two years, the AO has wrongly applied amended provisions of the Act in question. 10. The alternate plea taken by the learned Authorised Representative, Sh. Sood, is that the issue involved in these two appeals is highly debatable one and cannot be settled without undergoing long drawn arguments of both sides. In a way, this plea is interlinked with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion as to the meaning of the expression "regular assessment" in s. 214, s. 154 could not be invoked and the mistake could not be regarded as one which was apparent on the face of the record. 12. Again, in the case of CIT vs. Bagree Estate (P) Ltd. (1992) 107 CTR (Cal) 308 : (1993) 201 ITR 445 (Cal), the Hon'ble Calcutta High Court held that the question whether interest under s. 214 of the IT Act is payable upto the date of giving effect of an appellate order is a debatable one and interest upto the date cannot be claimed in an application under s. 154 of the Act. The Hon'ble Calcutta High Court in the case of CIT vs. Orient Paper Industries Ltd. (1994) 208 ITR 158 (Cal) also gave the same view. 13. The Allahabad High Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to r. 1 of Sch. II to the Companies (Profits) Surtax Act, 1964, could be rectified by the Tribunal. But the facts in the case of Karam Chand Prem Chand (P) Ltd. are entirely different from the case which we are dealing with. As we have already observed and held, during the relevant period, the amended provisions were not invoked. 17. The learned Departmental Representative has also relied on a decision of Karnataka High Court in the case of Addl. CIT vs. India Tin Industries (1986) 57 CTR (Kar) 70 : (1987) 166 ITR 454 (Kar) in which the Hon'ble Karnataka High Court held that the overlooking of mandatory provisions of law is a mistake which can be rectified under provisions of s. 154 of the Act. We also respectfully follow the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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