9911796707
TMI Blog1988 (9) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Income-tax Act, 1961, in the assessment is not valid for the reason that the Income-tax Act does not provide for the charging of interest under section 139(1) in a case where the assessee had not applied for extension of time for the filing of the return ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal had no jurisdiction to direct the Appellate Assistant Commissioner to decide a ground regarding the charging of interest under section 139(1) of the Income-tax Act, 1961, a ground that was not raised by the assessee in the appeal before the Appellate Assistant Commissioner ? (3) Whether the Tribunal is correct in holding that the Income-tax Act, 1961, contains provisions for an appeal before the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , at the hearing of the appeal on July 12, 1976, the assessee filed an additional ground which read as follows: "The charge of interest under section 139 has been ultra vires the Income-tax Act and is liable to be struck off." The Revenue opposed the admission of this additional ground on the ground that the Tribunal was not competent to go into the vires of any of the provisions of the Act under which it was constituted. On behalf of the assessee it was, however, explained that the validity of any of the provisions of the Act was not sought to be challenged and what was disputed in and by way of the additional ground was that the charging of interest under section 139 ( 1 ) in the assessment was not valid because the said section provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the filing of the return, there is no doubt conflict of opinion among the various High Courts. The Andhra Pradesh High Court in the decision in Kishanlal Haricharan v. ITO [1971] 82 ITR 660 and the Delhi High Court in the decision in 57 ITR 639 (sic ) have expressed a view against the Department and held that no interest can be charged under section 139 in a case where the assessee has not applied for extension of time for the filing of the return. But our attention has been drawn in some other case to the latest unreported decision of the Calcutta High Court in Gunendra Chandra De v. ITO (C. R. No. 1203 (W) of 1972 dated August 6, 1975) holding that in a case where the assessee had not applied for time, no penal interest under section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) is that even though a person does not furnish the return within the time allowed to him under sub-section (1) or sub-section (2), yet he may furnish the same before the end of the four assessment years concerned. The substantive provisions of sub-sections (1) and (2) of section 139 specify the time within which the return has to be filed. The provisos to sub-sections (1) and (2) confer power on the Income-tax Officer to extend the date for filing the return on an application in that regard made by the assessee. So, it is clear that the expression 'time allowed' in subsection (4) of section 139 is not confined only to the extension of time granted by the Income-tax Officer, but also to the time originally fixed for the filing of returns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of the appellants that as the appellants had not made any application praying for the extension of time for the filing of returns, the Income-tax Officer had no authority to charge interest under the provision of clause (iii) of the proviso to sub-section (1) of section 139 of the Act." In our view, having regard to the aforesaid decision of the Supreme Court, the first question must be answered in the negative and in favour of the Revenue. So far as the second question is concerned, reliance has been placed on the judgment of the Supreme Court in the case of Central Provinces Manganese Ore Co. Ltd. v.. CIT [1986] 160 ITR 961. There, the Supreme Court held that levy of interest is part of the process of assessment. Inasmuch as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellate Tribunal is competent to pass such orders on the appeal tax it thinks fit. There is nothing in the Income-tax Act which restricts the Tribunal to the determination of questions raised before the departmental authorities. All questions whether of law or of fact which relate to the assessment of the assessee may be raised before the Tribunal. If for reasons recorded by the departmental authorities in rejecting a contention raised by the assessee, grant of relief to him on another ground is justified, it would be open to the departmental authorities and the Tribunal, and indeed they would be under a duty, to grant that relief. The right of the assessee to relief is not restricted to the plea raised by him." In our view, since th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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