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TMI Blog1976 (8) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... sment on certificates filed by the appellant. A ground was taken objecting to the calculation of interest by the Income-tax Officer under section 18A(5). The Appellate Assistant Commissioner held that since no appeal lay under section 30 of the Act in respect of section 18A(5) the claim of the appellant was inadmissible. Being aggrieved, the assessee preferred a further appeal to the Income-tax Appellate Tribunal. The grounds urged before the Tribunal were, inter alia, that the assessee was entitled to a claim for deduction in respect of a bad or doubtful debt. This was allowed by the Tribunal. Another ground related to disallowance of a sum of Rs. 65,000 by the authorities below. This claim for allowance was upheld by the Tribunal. The relief under section 49D of the Act granted by the Income-tax Officer subsequent to the assessment had been withdrawn by the Appellate Assistant Commissioner. This was restored by the Tribunal. The Tribunal passed its order on the 30th November, 1966. Subsequent thereto the assessee filed a miscellaneous application before the Tribunal contending that the ground in respect of calculation of interest on the excess amount paid urged before the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Indian Income-tax Act, 1922. In support of his contention Mr. Sengupta cited and relied on a large number of decisions of various High Courts which are noted chronologically as follows : (a) Bhagat Dunichand of Haripur v. Commissioner of Income-tax [1929] 4 ITC 33 ; AIR 1929 Lah 593 [FB]. It was held in this case that an appeal against an assessment under section 23(4) of the Indian Income-tax Act, 1922, was barred by the proviso under section 30(1) of the said Act if the assessment was genuine and not ostensible. (b) Sri Gajalakshmi Ginning Factory Ltd. v. Commissioner of Income-tax [1952] 22 ITR 502 (Mad). In this case, the Madras High Court compared and contrasted the provisions relating to appeals as laid down by section 31 of the Indian Income-tax Act, 1922, with those provided by the Civil Procedure Code. The Court held that the powers of the Appellate Assistant Commissioner under the said section 31 was in some respects wider than the powers which could be exercised by an appellate court under the Civil Procedure Code. (c) Pt. Deo Sharma v. Commissioner of Income-tax [1953] 23 ITR 226 (All). The facts in this case were that the assessee had paid advance tax under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of penal interest correctly computed in accordance with the provisions of section 18A(6) of the Indian Income-tax Act, 1922. It was noted that the expression " assessment " had been used in that Act in different senses at different places and it could not be said that this expression should have the same meaning throughout the Act. The absence of a specific provision giving a right of appeal against an order imposing penal interest under the aid section 18A(6) or 18A(8) and the scheme and context of the other provisions of section 30 clearly indicated that no right of appeal was intended to be conferred. Even if the expression " liability to be assessed under the Act " included the liability to pay a penalty, for the purposes of section 30, the respective concepts of tax and penalty had to be kept distinct. (b) Mandal Ginning Pressing Co. Ltd. v. Commissioner of Income-tax [1973] 90 ITR 332 (Guj). In this case, the Gujarat High Court construed the expression " assessed " in section 30(1) of the Indian Income-tax Act, 1922. The court held that the expression should not be given a narrow meaning. In the section the words " under this Act " clearly showed that reference was bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of penal interest imposed under sub-section (8) of the said section as also sub-section (6) where there was a successful appeal against the regular assessment. In an appeal from a regular assessment it should be open to the assessee to take all points which may legitimately not only reduce the taxable income and the tax to be paid but may also reduce the quantum of penal interest. It was also held that an order of the Appellate Assistant Commissioner that an appeal from an order imposing penal interest was incompetent was an order made under section 31 and an appeal lay therefrom to the Appellate Tribunal. (b) Sarangpur Cotton Manufacturing Co. Ltd. v. Commissioner of Income-tax [1957] 31 ITR 698 (Bom). In this case, Chagla C.J., sitting in a Division Bench of the Bombay High Court without deciding the point, raised a question whether an appeal lay from the order of the Income-tax Officer refusing to allow the assessee interest under section 18A(5) for a period beyond the date of the assessment under section 24. (c) Mathuradas B. Mohta v. Commissioner of Income-tax [1965] 56 ITR 269 (Bom). In this case, a Division Bench of the Bombay High Court referring to the case of Jag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only against the calculation of interest or whether the question of interest was only a ground in the appeal, made no difference in the result. If no appeal was provided against calculation of interest the assessee could not circumvent this limitation nor stretch the language of the section by urging this ground in some other appeal. We have carefully considered the respective submissions of the parties. It appears to us that in the instant case the authorities below proceeded under a misconception that there was an appeal before the Appellate Assistant Commissioner against calculation of interest under section 18A(5). This is not borne out by the records and proceedings. It is clear from the records that the appeal which was preferred from the order of the Income-tax Officer was an appeal from the order of assessment and the calculation of interest was one of the grounds in that appeal. The question which the revenue seeks to urge in this reference is not before us and the law is well settled that the court will not spell out a new question or an additional question. In this view of the matter, we hold that the question which has been referred is academic and calls for no answ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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