TaxTMI 
TaxTMI 
2015 (11) TMI 752
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....le order. The learned CIT(A) has erred in law in observing that the Order Giving Effect passed by the Assessing Officer, incorrectly computing interest under section 244A, is not an appeal-able order and thus dismissing ground numbers (2) to (6) of the impugned appeal. The Appellant prays that the Order Giving Effect passed by the Assessing Officer be considered as an appeal-able order and ground numbers (2) to (6) be disposed-off by the Hon'ble Income Tax Appellate Tribunal on their merits. 2. Excess interest collected under section 220(2) The learned CIT(A) has erred in effectively confirming the order of the Assessing Officer wherein excess interest charged under section 220(2) amounting to Rs. 1,408,646 (Rs66,253 charged vide his order dated 21 March 2000 plus Rs. 1,396,095 charged vide his order dated 13 May 2001) has not been reversed. The Appellant prays that the excess interest of Rs. 1,408,646 be refunded to the Appellant. 3. Interest received under section 244A withdrawn twice The learned CIT(A) has erred in effectively confirming the order of the Assessing Officer wherein interest granted to the Appellant under section 244A of Rs. 723,209 has been withdra....
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....oth relate to the payment of interest to the assessee. The ld. AR further pointed out that the decision of Hon'ble Bombay High Court has been followed in the cases of Godfrey Philips India Ltd. Vs. CIT reported as 206 ITR 23, Phalton Sugar Works Limited Vs. CIT reported as 215 ITR 582 and Phalton Sugar Works Limited Vs. Commissioner of Income Tax reported as 216 ITR 479 and various other decisions. 4. On the other hand Shri Dheeraj Kumar Jain representing the Department vehemently supported the findings of the Commissioner of Income Tax (Appeals). 5. Both sides heard. In appeal, the assessee has primarily challenged the findings of Commissioner of Income Tax (Appeals) in holding that interest u/s. 244A arising out of order giving effect by the Assessing Officer is consequential, therefore, it is not an appealable order. The other grounds raised in the appeal of the assessee are either in support or consequential. 6. We find merit in the submissions of the ld. AR of the assessee. The Hon'ble Bombay High Court in the case of Caltex Oil Refining (India) Ltd. vs. CIT (supra) while dealing with the issue whether order relating to interest u/s 214 of the Act is appealable ha....
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....t be so, can it be said to be tax determined in the year of assessment for the purpose of appeal under clause (c) of section 246. So far as the first part is concerned, we do not find much difficulty in view of the decision of the Supreme Court in M. Chockalingam and M. Meyyappan v. CIT [1963] 48 ITR (SC) 34. In this case the power of rectification was the subject-matter of scrutiny by the Supreme Court. By an order of rectification penal interest under section 18A of the old Act was enhanced. No opportunity of hearing as contemplated by section 35 of the said Act was given to the assessee before making the rectification and enhancing the amount of interest. It may be observed that the proviso to section 35 of the 1922 Act provided for a hearing to be given to the assessee when the effect of rectification would be the enhancement of the "assessment ". What was sought to be argued on behalf of the Revenue was that the addition of penal interest was not enhancement of assessment as stated in the said proviso. Repelling this contention the Supreme Court said (at page 41): "We do not see what else it could be. The word 'assessment' is used in the proviso not as an equivalent of....
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....." 10. It is against this order dated 29th March, 1996 that an appeal was preferred by the assessee before the learned tribunal which resulted in the impugned order directing the Assessing Officer to allow interest in accordance with law. 11. We are unable to see how can it be said that the appeal preferred by the assessee which was dismissed by the order dated 29th March, 1996 was not an appeal against an order passed under section 143(3) of the Act. The Assessing Officer could not have exercised jurisdiction except under section 143(3) of the Act. Reference in this regard may be made to the judgment in the case of Kooka Sidhwa & Co. vs CIT reported in [1964] 54 ITR 54 (Cal), wherein the following view was taken (page 62): "In my judgment, the forms of the orders passed under section 23(3) of the Income-tax Act, 1922, are not exhaustive. The effect or substance of the order should be looked into to decide whether an appeal lies. The order passed by the Income-tax Officer revising the assessment, made orginally under the direction of the Appellate Tribunal, would partake the character of a fresh assessment order and would be no less an order as made under section 23(....