9911796707
TMI Blog1983 (10) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... same with reference to the records since in any event what we have to decide is whether there was any mistake apparent from the record which could be rectified. By a notice served on 9-7-1973, a demand was made calling upon the assessee with reference to the last assessed income, for the assessment year 1972-73 which was a total income of Rs. 1,53,280, to pay advance tax of Rs. 14,068. It is seen from the challans on record that the assessee paid a higher amount of advance tax of Rs. 18,078 in the financial year 1-4-1973 to 31-3-1974. Thus, this is a case where the assessee had filed an estimate showing higher advance tax payable under the provisions of section 212(3A) of the Act. The assessee filed return of income, showing the total incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stating that interest was omitted to be charged originally. This order is dated 25-6-1981. In the meanwhile, the assessee filed an appeal to the AAC who did not accept the plea that there was no mistake apparent from the records and held that it could not be inferred that the ITO had considered the levy of interest while making the assessment originally and in the exercise of his discretion had omitted to levy interest. The appeal was, therefore, dismissed by the order dated 17-12-1982. It appears that the assessee had sought waiver of interest by a petition to the IAC dated 22-9-1981 but no orders were passed on that. Several reasons were urged namely that the assessee-firm was entitled to huge refunds in the earlier years and lot of recti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t shall be payable by the assessee upon the amount by which the advance tax paid by him falls short of the assessed tax as defined in sub-section (5) of section 215. " The provisions of section 217(2) further provide as under : " The provisions of sub-sections (2), (3) and (4) of section 215 shall apply to interest payable under this section as they apply to interest payable under that section. " The provisions of section 215(4) of the Act, therefore, become applicable for considering whether interest is leviable or not under the provisions of section 217(1A) by virtue of the provisions of section 217(2). Section 215(4) provides that in such cases and in such circumstances as may be prescribed the ITO may reduce or waive the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fic sub-rules of rule 40, that the matter has to be referred to the IAC under sub-rule (5) of rule 40. Thus, there an assessment is completed more than one year after submission of the return and the delay in completing the assessment is not attributable to the assessee, the ITO himself is competent to waive the interest. The next question that arises for consideration is whether waiver of interest in such a case can be made where an application is not made by the assessee. In other words, the point for decision is whether the existence of an application making a request for waiver is a condition precedent to the ITO exercising his discretion within the terms of rule 40(1). In the present case, admittedly, there was no application for waive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 33A assumed that the Amending Act 25 of 1953 had no retrospective operation and rejected the claim of the assessee on the ground that at the date when the order of assessment was made, Act 25 of 1953 had not come into operation, and that the Act became effective as from December 1953, when the rules were framed. In so holding, the Commissioner committed an error of law apparent on the face of the record. The High Court was therefore right in setting aside the order which was passed by the Commissioner without considering the proviso to section 18A(6) which was clearly applicable to the case of the assessee and in the light of rule 48 which was enacted in pursuance of that proviso. " [Emphasis supplied] The Supreme Court held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... casions which itself was only after about two years of filing the return when the case was posted for hearing, the assessee sought for adjournment, but after the assessee filed the revised return, a year lapsed before the order of the assessment was made. Whether in rule 40(1) the date on which the return was filed and completion of the assessment more than one year after submission of return refers to date of submission of the original return or whether in the circumstances the revised return filed is to be construed as a return within the meaning of rule 40(1) is essentially a debatable matter. In the present case, from the narration of facts, it is also equally arguable whether there was any delay which could be attributable to the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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