9911796707
TMI Blog1983 (11) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... charged interest under section 139(8) of the Act for late filing of the return and interest under section 217 of the Act for not filing an advance tax estimate. The assessee, therefore, moved a petition for rectification under section 154 of the Act for cancelling the interest charged under section 139(8) and under section 217. The ITO, however, by order under section 154 rejected the assessee's application under section 154. The AAC in appeal, agreed with the ITO on this issue and refused to interfere. The assessee has, therefore, come up in the present appeal before us. 3. The assessee's learned counsel Shri Mapara cited before us two rulings of the Hon'ble High Courts, one of the Hon'ble Calcutta High Court of in the case of Monohar Gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 217 and, hence, the charge of interest under section 217 was a mistake apparent from the record. Thus, according to Shri Mapara whichever way the matter was looked into, the charge of interest both under section 139(8) and under section 217 should be cancelled. Alternatively, it was argued that the interest under section 139(8) should be reduced to the nominal amount after taking into account the advance tax payment of Rs. 27,630 on 29-3-1978. 4. On the other hand, the learned departmental representative Shri Joy, submitted that even according to the ruling of the Hon'ble Karnataka High Court in the case of Executors of the Estate of late H.H. Rajkuverba Dowagar Maharani Saheb of Gondal, an order under section 217 does not form p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9(8) or the charge of interest under section 217, but with the limited issue whether there was any mistake apparent from the record in the charge of interest under section 139(8) and/or section 217. In view of the case laws cited both by the assessees learned counsel Shri Mapara as well as the learned departmental representative Shri Joy, two views are possible on the issue of whether if there is no direction in the assessment order for charge of interest, interest can still be charged under section 139(8) and/or section 217 at the time of issue of demand notice. Similarly, there is a conflict of judicial pronouncements on the issue of whether where the payment purported to be advance tax was made after the last date of advance tax instalme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under section 217 only if the assessee was under an obligation to file a voluntary estimate of advance tax as required by sub-section (3) of section 212 but had not submitted such an estimate. Even though a claim was made before us that the assessee was a regular assessee and was, therefore, not under an obligation to file a voluntary estimate of advance tax as required by sub-section (3) of section 212 as it then existed, there is no finding to this effect either in the order under section 154 or in the order of the AAC under appeal before us. Even from the material which has been filed before us it is not possible to find out whether at the time the estimate under sub-section (3) of section 212 as it then existed was due, the assessee w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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