9911796707
TMI Blog2005 (12) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax in C.No. CCA-105(96)/CBE/96-97 dated 24-8-2000. ORDER Giving effect to the order of Chief Commissioner of Income-tax, Chennai in CCA 105(96)/CBE/96-97, dated 24-8-2000 the Interest under sections 234A, 234B and 234C charged are hereby waived. The Interest already collected is refunded to the assessee as under:- Interest under section 234A : Rs. 10,266 -do- u/s 234B : Rs. 99,238 -do- u/s 234C : Rs. 6,932 ------------- Total refundable Rs. 1,16,436" ------------- Aggrieved by the order of the Assessing Officer in not allowing interest under sections 244(1A) and 244A(1)(b) of the Act the assessee preferred an appeal before the CIT (Appeals), Salem. The CIT (Appeals) after relying on various case laws cited before him allowed the claim of the assessee by entertaining the appeal under section 246A of the Act. Aggrieved by the order of the CIT (Appeals), the Revenue is now before us in second appeal. 3. The ld. DR, Shri A. Dhanaraj, first of all argued that the order-passed by the Chief Commissioner of Income-tax on waiver of interest under sections 234A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect to the order of the Chief Commissioner of Income-tax waiving interest under sections 234A, 234B 234C. The Chief Commissioner of Income-tax in the proceedings before him passed an order on 24-8-2000 for waiver of interest and the relevant paragraph 2 of his order reads as under:- "2. I have seen that the Commissioner of Income-tax, Coimbatore, has vide her C. No. 143 3-C (55)/96-97/CBE, dated 12-7-2000, admitted the factual position of offer in the revised return being the cause for charging of interest. The Income-tax Officer, Ward I(3), Salem's report confirms the fact that the tax attributable to such income had been paid and such income was disclosed in the return filed voluntarily without detection by the Department. Taking into note the totality of the circumstances of the case, including the fact that the additional income shown is not on account of any effort on the part of the Department; and, in accordance with the jurisdictional High Court judgment reported in 210 ITR 735, in my opinion, it shall be fair if the applicant's request in accordance with the Board's order if F. No. 400/234/95-IT(B), dated 23-5-1996 because the applicant is not being aware of CPWD's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court as well as the decision of the Supreme Court make it clear that it is open to the assessee to challenge the order of the Income-tax Officer refusing to grant interest under section 214 of the Act, provided he has challenged the order of assessment. It is no doubt true that no appeal would like against an order refusing to grant interest simpliciter, but, when the entire assessment is challenged before the Assistant Commissioner it is open to the assessee to challenge the order of the Income-tax Officer refusing to grant interest." 8. Further, the Hon'ble jurisdictional High Court in Triplicane Urban Co-operative Society Ltd. v. CIT [1980] 126 ITR 125 (Mad.) has held that section 246 of the Income-tax Act does not provide any appeal against the order of the Assessing Officer refusing to pay interest on refund to the assessee under section 214(1) and accordingly, no appeal lies against such an order. But when the assessee prefers an appeal against the assessment, he could challenge the refusal of interest on refund against such an order under section 214(1) also in the appeal filed. But the Hon'ble jurisdictional High Court has held that if the grievance is only with reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision which can be challenged against the exclusive refusal to grant interest. The right of appeal is not merely a matter of procedure. It is a matter of substantive right. The right of appeal is a creature of statute and it is for the Legislature to decide whether right of appeal could be unconditionally given to an aggrieved party. If the statute does not create any right of appeal, no appeal can be filed. The right of appeal inheres in no one and therefore, an appeal for maintainability must be having a clear authority of law and that is why the right of appeal is described as a creature of statute. Here, in the present case, the disputed issue is not appealable as there is no specific appeal provided under the provisions of section 246 of the Act. 10. Going by the facts of the case and respectfully following the judgment of the Hon'ble jurisdictional High Court in the above two cited cases, we have no hesitation in holding that no appeal would he against the order of the Assessing Officer, who has not granted any interest in the consequential order passed on the order of the Chief Commissioner of Income-tax for waiver of interest under sections 234A, 234B 234C of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
