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TMI Blog2015 (2) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 143(3) of the Act. It cannot be disputed that an appeal against an order passed under section 143(3) is permissible. It is altogether a different matter that the entitlement to interest arises out of section 244(1A) of the Act. A civil court may pass or refuse to pass an order for payment of pendentelite interest under section 34 of the Code of Civil Procedure. But it cannot be contended that the decree is one passed under section 34 of the Code of Civil Procedure. We are as such of the opinion that the learned Commissioner of Income-tax fell into a grievous error in proceeding on the basis that it was an appeal against an order refusing to grant interest under section 244(1A) of the Act. The appeal was an appeal against the order of as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appealable but an order refusing to grant interest under section 244(1A) of the Act is not appealable. He contended that an appeal is a statutory remedy. Unless the statute provides for such a remedy, an appeal cannot be entertained. He added that the learned Tribunal erred in proceeding on the basis that the judgment of the Madras High Court in the case of CIT v. T. V. Sundaram Iyengar and Sons Ltd. reported in [1999] 236 ITR 524 (Mad) holding that such an appeal is maintainable and another judgment of the Bombay High Court in the case of CIT v. S. C. Shah reported in [1982] 137 ITR 287 (Bom) wherein an identical view was taken, were not disapproved by the hon'ble Supreme Court in the case of CIT v. Chittoor Electric Supply Corporatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the views taken by the Madras High Court or the Bombay High Court whereas the fact is that the hon'ble Supreme Court did not even consider the matter. Mr. Dutt no doubt is correct in submitting that the question which cropped up for a decision before the Tribunal or before us was not considered by the apex court. Therefore, the judgment in the case of CIT v. Chittoor Electric Supply Corporation is not an authority for the purpose of deciding the issue either way. Briefly stated the facts and circumstances are as follows : Aggrieved by an order of assessment passed under section 143(3) of the Act the assessee preferred an appeal which was allowed by a judgment and order dated March 23, 1994. Since the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part thereof having been found in appeal or other proceeding under this Act to be in excess of the amount which such assessee is liable to pay as tax or penalty, as the case may be, under this Act, the Central Government shall pay to such assessee simple interest at the rate specified in sub-section (1) on the amount so found to be in excess from the date on which such amount was paid to the date on which the refund is granted : Provided that where the amount so found to be in excess was paid in instalments such interest shall be payable on the amount of each such instalment or any part of such instalment, which was in excess, from the date on which such instalment was paid to the date on which the refund is granted: Provided further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave exercised the jurisdiction except under section 143(3) of the Act. Reference in this regard may be made to the judgment in the case of Kooka Sidhwa and Co. v. CIT reported in [1964] 54 ITR 54 (Cal), wherein the following view was taken (page 62) : In my judgment, the forms of the orders passed under section 23(3) of the Income-tax Act, 1922, are not exhaustive. The effect or substance of the order should be looked into to decide whether an appeal lies. The order passed by the Income-tax Officer revising the assessment, made originally under the direction of the Appellate Tribunal, would partake of the character of a fresh assessment order and would be no less an order as made under section 23(3) of the Act within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve done under section 244(1A) of the Act. Therefore, the question which has been posed on behalf of the Revenue does not, in our opinion, arise in the facts and circumstances of the case. In any event, the views taken by the Madras High Court and the Bombay High Court are, according to us, logical and reasonable. In the case of CIT v. T. V. Sundaram Iyengar and Sons Ltd., the Madras High Court answered the question as follows (page 534 of 236 ITR) : Therefore, we are of the view that the interest on the refund is really a part of the refund and interest and refund are not two different things. When the Income-tax Officer has passed the order under section 154 of the Act without granting interest due to the assessee und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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