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TMI Blog1981 (12) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... e. So the ITO within three months of the order of the CIT refunded Rs. 3,57,894 without any interest. The assessee appealed to the Commr. (Appeals) on the ground that it should be given not only refund of the amount deposited but also interest as provided in s. 244(1A) of the IT Act, 1961, w.e.f. the date of payment of the money paid by the assessee to the date of refund. The Commr. (Appeals) held that because s. 104 proceedings is neither an order of assessment nor an order of penalty, s. 244(1A) has no application to the facts of the case. So the appeal was dismissed. Hence further appeal by the assessee. 2. In the light of the submissions of both sides, the following two questions arise for our consideration: (i) Whether refusal to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning of s. 2(14) of the IT Act, 1961 and the ITO holds against the assessee and the assessee in appeal repeats his contention, he cannot be shut out by the Department by arguing that the appeal is incompetent because s. 2(14) does not provide for an appeal. Similarly if the ITO treats an unexplained investment under s. 69 as income of the assessee and the assessee appeals, he cannot be shut out by the Department by arguing that s. 69 does not provide for an appeal. What we want to show by this illustration is the difference between sections in IT Act, 1961 under which orders are to be passed and the Sections which merely provide for the rights and obligation of the assessee and the Department. Under the scheme of s. 246 which provides fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not provided for interest to which the assessee is entitled under s. 244(1A). Looked at that way also it is appealable. 4. When a like question arose for consideration before the Tribunal in the case of M/s. Carborandum Company, Niagara Falls, U.S.A., Madras Bench A of the Tribunal in its consolidated order in ITA Nos. 2192 to 2206 (Mds)/79 decided on 26th Nov., 1980, to which one of us, the Vice - President, was a party, has held that refusal to pay interest by the Department is an appealable order. So for these reasons we find that the appeal before the Commr. (Appeals) was competent and that, therefore, the assessee can appeal to the Tribunals against the adverse order passed by the CIT (Appeals). 5. Question 2 : The submission of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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