Bombay High Court
Spaco Carburettors (India) Ltd. vs M.A. Ajinkya, Commissioner Of ... on 21 March, 1990
Equivalent citations: (1990)92BOMLR193, [1990]186ITR360(BOM)
JUDGMENT T.D. Sugla, J.
1. By this petition under article 226 of the Constitution of India, the petitioner has challenged the validity and legality of the order dated January 30, 1986, passed by the Commissioner of Income-tax, Bombay City IV, Bombay, under section 154 of the Income-tax Act, 1961.
2. The petitioner is a company. The proceeding relate to its assessment years 1979-80 and 1982-83. The issue involved being common, only the facts pertaining to the assessment year 1979-80 are referred to for the sake of brevity. The assessment was completed on September 17, 1982. On the order of assessment itself, the Income-tax Officer had directed that interest under section 216 will be charged for deferred payment of advance tax. The petitioner had filed an appeal against the order of assessment. The appeal was disposed of by the Commissioner of Income-tax (Appeals) on December 30, 1982. It is pertinent to mentioned that no ground against levy of interest under section 216 was taken by the petitioner in the appeal. The petitioner filed a revision application before the Commissioner under section 264 of the Income-tax Act which was disposed of by order dated November 21, 1985. As a result of that order, interest under section 216 amounting to Rs. 18,900 was deleted.
3. Later on, the Commissioner felt that the order of assessment including the order charging interest under section 216 was the subject-matter of appeal before the Commissioner (Appeals) and, therefore, he had no jurisdiction to consider and/or allow the petitioner's revision application under section 264. Accordingly, after allowing the petitioner an opportunity of being heard, he passed the impugned order under section 154 cancelling the order passed by him under section 264 originally.
4. The pertinent question in this petition is whether the order passed by the Commissioner in revision under section 264 on November 21, 1985, suffered from any apparent mistake from the record so as to give him jurisdiction to withdraw the said order under section 154 of the Income-tax Act, 1961. There being no dispute that an order which has been the subject-matter of appeal before the Commissioner (Appeals) cannot be revised by the Commissioner under section 264, the question in other words is whether the order of assessment and the order charging interest under section 216 constitute one order so that the appeal against the order of assessment must necessarily be taken to mean an appeal also against the order charging interest under section 216. It is worthy of note that under section 246 of the Income-tax Act, 1961, the assessment order and the order charging interest under section 216216 are separately appealable. While the order of assessment is appealable under section 246(c), the order under section 216 is appealable under section 246(m). That apart, the question whether interest is or is not to be charged under section 216 arises only after the assessment is completed. This is evident from the opening words of section 216 which are "where, on making the regular assessment, the Income-tax Officer finds that any assessee has; (a)... (b).... he may direct that the assessee shall pay simple interest at 12 per cent per annum and thereafter again; (i)... (ii)..." The mere fact that an order under section 216 charging interest is passed on the same sheet of paper on which the order of assessment is passed or is concluded will not, in my judgment, make the two orders one. Therefore, an appeal filed against the order of assessment will not automatically lead to or justify the conclusion that the appeal was filed both against the order of assessment and against the order under section 216 or that the order under section 216 was also the subject-matter of appeal before the Commissioner (Appeals).
5. A similar question had come up for consideration before the Supreme Court in the case of CIT v. Amritlal Bhogilal and Co. . The assessee in that case was a partnership firm. The order of assessment and the order granting registration were passed one after the other. The Income-tax Officer had granted registration to the assessee and, therefore, there was no question of appeal by the assessee against that order. However, appeal was filed against the order of assessment. Subsequently, the Commissioner sought to cancel the registration under section 33B of the Indian Income-tax Act, 1922 (corresponding to section 263 of the Income-tax Act, 1961). There again, one of the conditions was that if an order had been the subject-matter of appeal, the Commissioner could not revise the order under section 33B. This court, inter alia, held in CIT v. Amritlal Bhogilal and Co. [1953] 23 ITR 420 that the order of registration was also the subject-matter of appeal and, therefore, the Commissioner could not revise the order. Reversing the judgment of this court, the Supreme Court, inter alia, held that an order granting registration to a firm was an order separate from and independent of the order of assessment. The registration having been granted to the assessee by the Income-tax Officer, there was no question of appeal by the assessee against such an order. In any event, no appeal was provided under section 31 of the old Act from an order granting registration to a firm under section 26A. The order granting registration was, therefore, not the subject-matter of an appeal before the appellate authority.
6. The moot question, therefore, is whether the order charging interest under section 216 was or was not the subject-matter of appeal before the Commissioner (Appeals). On this question, the Commissioner himself very fairly stated that no appeal was filed by the petitioner against the charging of interest under section 216 which by implication meant that the petitioner had accepted the levy of interest. There was no mention of levy of interest under section 216 in the appellate order of the Commissioner (Appeals) because that question was not raised in the appeal against the order of assessment.
7. Having regard to the above discussion, it is evident that the order of the Commissioner passed on November 21, 1985, under section 264 did not suffer from any mistake far less a mistake apparent from the record. The impugned order passed by the Commissioner under section 154 with-drawing the relief granted by him under section 264 was thus without jurisdiction. The impugned order is, accordingly, quashed.
8. The rule is made absolute in terms of prayer clause (a). The petitioner is entitled to refund of interest, if already paid, in pursuance of the Income-tax Officer's order or the impugned order.
9. No order as to costs.