9911796707
TMI Blog1984 (11) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Family Trust. The share of her income assessable in this year amounted to Rs. 28,572. As no return had been filed by the assessee under section 139(1), the ITO issued a notice under section 148 of the Act on 7-7-1982 which was served on the assessee on 13-7-1982. Even before the notice under section 148 was served on the assessee, the assessee had filed the return on 12-7-1982. In the order passed by the ITO under section 143(3), read with section 147(a), of the Act, he directed the levy of interest under sections 139 and 215. 3. On appeal before the AAC, the point which came up for consideration before him is whether the appeal objecting to the levy of penal interest alone is maintainable or not. The ITO relying on the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held to be maintainable. Alternatively, the counsel argued that if the appeal is not maintainable under clause (c) of section 246(1) of the Act, it is maintainable under clause (e). In this case it is not disputed that the assessment has been made in the course of proceedings initiated under section 147(a). Therefore, it is indeed an assessment under section 147 against which the appeal falls under clause (e) of section 246(1). According to him, in such an appeal there is no restriction as to the point which the assessee may agitate. In support of the aforesaid proposition, he relied upon the decision of the Calcutta High Court in the case of Surajmal Ganeshram v. CIT [1979] 120 ITR 715. He, therefore, contended that the order for levy of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on the decision of the Bombay High Court mentioned supra, he deleted the interest charged by the ITO under sections 139 and 215. As against this order of the AAC, the revenue is in appeal before us. 4. At the time of hearing of the appeal, the learned departmental representative raised an additional ground of appeal, namely, on the facts and in the circumstances of the case, the AAC erred in entertaining the appeal against charging of interest under section 139(8)/215/217. 5. The learned departmental representative contended before us that notice under section 148 was issued on 7-7-1982 and served on the assessee on 13-7-1982. The assessee had filed the return on 12-7-1982, that is, even before the receipt of notice. He, therefore, con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is fully covered by the decision of the Calcutta High Court in the case of Surajmal Ganeshram and there is no contrary decision of any other High Court on this point. He relied upon certain observations made by their Lordships of the Calcutta High Court, in the aforesaid decision appearing on pages 724 and 725, wherein they have further held that the right of appeal from an assessment or reassessment under section 147 appears to be a general right and if such an appeal is admitted, then it does not appear that the assessee is confined to certain grounds and not others. Relying upon the decision of the Bombay High Court in Daimler Benz A.G.'s case, the counsel contended that the assessee in this case has really denied his liability to the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is followed by this Bench of the Tribunal [IT Appeal Nos. 106, 107 and 447 (Nag.) of [1983], dated 10-2-1984]. He, therefore, submitted that the order of the AAC is to be sustained on merits also. 7. We have carefully considered the facts and circumstances of the case and the arguments advanced by both the sides. At the outset we find that the ground relating to challenge on maintainability of the appeal is raised at a very late stage. In view of the decision of the Calcutta Bench of the Tribunal in WTO v. Shiva Prasad Bagaria [1982] 2 ITD 449, the additional ground taken by the revenue is not maintainable. However, since the counsel for the assessee has not seriously challenged the admission of the additional ground, the same is consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 147, the provision for appeal is found in clause (c) of section 246. If we accept the argument of the learned departmental representative, clause (e) of section 246 becomes redundant. We are, therefore, of the considered opinion that the appeal against an order under section 147 challenging the levy of interest is maintainable. The appeal in question is admittedly against an order under section 147(a) in the light of the proposition laid down by the Allahabad High Court and Patna High Court, mentioned supra, and is covered by clause (e) of section 246 and in such an appeal, there is no restriction or limitation as to the raising of any ground. Thus, the preliminary objection raised by the learned departmental representative is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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