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TMI Blog1982 (6) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 Appeal No. 59. AF/HC/Cal. 71-72. Instituted on the 17th March, 1972, from the order of the Income-tax Officer of E-Ward/HC/Cal. (Sri P. N. Ghosh) : (1) Year of assessment ... 1967-68 (2) Name of appellant ... M/s. Mohanlal Soni (3) Income assessed ... Rs. 73,970 (4) Tax demanded-Income-tax/Super-tax ... Rs. 11,366 (5) Section under which assessment was made ... 143(3) Date of hearing: 28-12-1972 Present for appellant : Sri 1. C. Sancheti, Advocate. APPELLATE ORDER AND GROUND OF DECISION. The present appeal is against the I.T. assessment order fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving 1/3rd share in the partnership business. The petitioner was assessed as such as a registered firm within the meaning of s. 2(7) of the said Act and it is alleged that the method of accounting maintained by the petitioner is " mercantile system" and the accounting period is Dewali year. In compliance with the notice under s. 210 of the I.T. Act for payment of advance income-tax for the assessment year 1967-68 the petitioner paid the advance tax of Rs. 1,316 on 20th August, 1966, and Rs. 1,711 on 4th February, 1967, amounting to Rs. 3,027. In respect of the period 1968-69, the payment of advance income-tax was made on 5th March, 1968, the payment being Rs. 1,254. For the period 1969-70, the advance tax of Rs. 3,564 was paid in two instal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein that the appeals as against the interest charged are not maintainable. Being aggrieved by the said order of the ITO and the appellate order, the petitioner moved this court and obtained the present rule. At the outset it must be stated that the finding of the AAC that no appeal lay against the order passed under s. 139(1) of the I.T. Act is patently wrong. The charging of interest under s. 139(1) is, according to me, appealable under s. 246 of the I.T. Act. Therefore, in so far as the charge of interest is concerned, the learned AAC must re-hear the appeal to that extent. The order portion of that order, according to me, is to be affirmed, because, in my opinion, the argument advanced by Mr. Roy Chowdhury that s. 139(1) is ultra vires ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is not made to depend upon the tax assessed on or payable by such firm. On the contrary, the registered firm will have to pay the same penalty as an unregistered firm which may far exceed the maximum limit of 50% prescribed by the above provision. This, according to the appellants, constitutes discrimination under article 14 of the Constitution. Now, a firm, when registered, is treated as a separate entity liable to tax. After 1956 it has to pay tax at a special reduced rate. If a firm got itself registered the partners were entitled to certain benefits and advantages. It was, however, open to the Legislature to say that once a registered firm committed a default attracting penalty, it should be deemed or considered to be an unregistered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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