1980 (6) TMI 46

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..... ear found that the assessee failed to file an estimate of advance-tax payable for the concerned assessment year as per the provisions of s. 212 (3) of the IT Act and, therefore, the provisions of s. 217 for charging interest were attracted but the ITO while completing the assessment had failed to charge any such interest. He, therefore, considered that the assessment order passed by the ITO is erroneous and prejudicial to the interest of the Revenue and after hearing the assessment in this connection and rejecting its objections passed the impugned order. 3. In the appeal before us, the assessee's submissions are that the CIT had no jurisdiction to pass the order and to direct the ITO to levy interest under s. 217 of the Act. It was stat .....

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..... tative submitted that no separate order is contemplated to be passed under s. 217 as the interest in merely added to the tax. In support of the Department's stand, reliance was placed on the decisions noted in Foot Note Nos. 18 19 on the Commentary of Kanga Palkhivala 7th Edi. Vol. I. 6. Having considered the facts and the contentions of the parties, we find substantial merit in the assessee's objections. The decision relied on by the Deptl. Representative which are stated in the Foot Note No. 18 of Kanga Palkhivala at Page 1071 merely state that in regard to charge of penal interest under s. 18A (6) of the IT Act, 1922, as it stood at the relevant time, it could be done by mere calculation and entry in the assessment form without .....

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..... ear to us that the present order of the Commr. under s. 263 purporting to revise the order of assessment is unwarranted and without jurisdiction, and the assessee's contention is directly supported by the Karnataka High Court decision mentioned above. Even if the failure to charge the interest on the part of the ITO can be said to form part of the assessee order, we agree with the assessee that since the assessment order itself became undisputedly the subject matter of appeal and an order by the AAC, the Commissioner had no jurisdiction to invoke s. 263 to revise the order of assessment of the ITO because according to the special Bench order of the Tribunal in Dwarkadas Co. the Commr's jurisdiction in regard to revision of an order of the .....

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