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TMI Blog2015 (12) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriately by resorting to revisional jurisdiction of the Commissioner. It was further observed that before the revisional jurisdiction of the Commissioner can be invoked for waiver or reduction, the assessee is required to demonstrate before the Assessing Officer that there is a case for waiving or reducing the levy of interest. Thus the appeal filed by the assessee laying challenge to the very levy of interest under Sections 234A, 234B and 234C of the Act before the CIT(A) was clearly maintainable. As the assessee had paid due taxes within 4 days of the receipt of the cheque in the month of September, 2007 and filed the return voluntarily, thus, the CIT(A) had rightly held that interest under Section 234A of the Act be not charged for the reasons that the sale was conditional sales which was to be completed only after the realization of the last cheque and thus considerations were beyond the control of the assessee. Further, interest under Section 234B of the Act was also restricted by directing the Assessing Officer to charge it only on the amount of capital gain worked out after taking sales consideration at the amount received by the assessee during the financial year 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of CIT(A) in passing a perverse order without mandate in the case where the assessee could have filed a petition u/s 154 of the Income Tax Act to the Assessing Officer instead of filing an appeal before the CIT(A), which does not lie? 4. Whether on the facts and in circumstances of the case and in law, the ITAT was right in law in upholding the order of CIT(A) wherein, having no regards to the expressions used in Section 45 and Section 48 for computation of long term capital gain arising for accruing on transfer of capital, the CIT(A) held that it was a conditional sale with sales considerations not fully received in the F.Y. 2006-07 and, therefore, liability u/s 234A, u/s 234B and u/s 234C did not arise. The order of the CIT(A) and that of ITAT upholding the order of CIT(A) are perverse inasmuch as Sections 45 and 48 do not recognize conditional sale for computation of capital gains, rather, that capital gains have to be computed on considerations received or accruing? 2. Briefly stated, the facts necessary for adjudication of the instant appeal as narrated therein may be noticed. The assessee is an agriculturist and had filed the return of income on 10.10.2007 for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer under Sections 234A, 234B and 234C of the Act; and (ii) Whether the CIT(A) and the Tribunal were justified in deleting the interest under Sections 234A and 234C of the Act and in restricting the interest charged under Section 234B of the Act. 7. Adverting to issue No. (i), it may be noticed that the question regarding maintainability of appeal under Section 246 of the Act against order charging interest passed by the Assessing Officer under the Act was considered by the Apex Court in Central Provinces Manganese Ore Co. Ltd. v. CIT (1986) 160 ITR 961. It was observed that the levy of interest is the part of the process of assessment. Although Sections 143 and 144 of the Act do not specifically provide for the levy of interest but it is nevertheless a part of the process of assessing the tax liability of the assessee. The Supreme Court held that since levy of interest is a part of the process of assessment, it could be challenged in appeal provided the assessee disputes the chargeability of interest on the ground that he is not liable to the levy of interest at all. It was clarified that where the assessee claims waiver or reduction of the interest levied, that could no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was received prior to the end of the relevant financial year and balance 80% was received in the next financial year. Without prejudice to this ground, the assessee during the course of first appellate proceedings also raised an additional ground that the assessee company could be fastened with the levy of interest to the extent of 20% only, i.e. the amount received by the assessee in the relevant financial year. Obviously, it was an alternative ground. The main contention as discussed above of the assessee remained that it was not liable to the levy of interest under Sec. 234A, 234B and 234C of the Act. Thus, respectfully following the ratio laid down by the Hon'ble Supreme Court in the above cited case, we hold that the first appeal against the levy of the disputed interest under Sec.234A, 234B and 234C was very much maintainable under sec. 246 of the Act. Hon'ble Supreme Court has been also pleased to observe that clause (c) of sec. 246 provides an appeal against an order where the assessee denies his liability to be assessed under the Act or against any assessment order under sub-section (3) of sections 143 or 144, where the assessee objects to the amount of income as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strict the levy of interest under Section 234B of the Act on the amount of capital gain worked out after taking sales consideration at the amount received by the assessee during the financial year 2006-07, deducting proportionate indexed cost of acquisition and allowing exemption under Section 54EC of the Act for ₹ 50 lacs out of the capital gains so worked out. Rest of the interest charged under Section 234B was directed to be deleted. As the assessee had paid due taxes within 4 days of the receipt of the cheque in the month of September 2007 and filed the return voluntarily, the learned CIT (Appeals) was of the view that interest under Section 234A should not be charged for the reasons that the sales was conditional sales which was to be completed only after the realization of the last cheque and thus considerations were beyond the control of the assessee. He found that the liability to pay interest under Section 234C of the Act was not warranted in view of the specific provisions of the Act in respect of capital gains. He accordingly directed to delete the interest levied under Section 234C of the Act. 12. In view of the aforesaid findings which are not shown to be err ..... X X X X Extracts X X X X X X X X Extracts X X X X
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