2012 (7) TMI 1016

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....s Objection, the assessee raised the following grounds:- 1. That the appeal is barred by limitation, therefore, not maintainable. 2. That the CIT(A) rightly allowed the direction in respect of charging of interest. 3. During the course of hearing, ld counsel for the assessee stated at Bar that he has the instructions not to press this Cross objection. Accordingly, this Cross objection is dismissed as not pressed. 4. In the Departmental appeal i.e. ITA No.425/Ju/2009, the only ground raised reads as under:- "On the facts and in the circumstances of the case the ld CIT(A) has erred in directing to recalculate interest u/s 234A for 20 months instead of 58 months as charged by the Assessing Officer, on the basis....

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....the assessee on 29.3.2006 and so the return was due on 29.4.2006 but 29th and 30th were Saturday and Sunday and so the return was filed on 1.5.2006. In this way the interest is chargeable only for 20 months. In support of the contention I would like to bring to your kind notice the finding given by the Hon'ble Bombay High Court in the case of Priti Pithawala vs ITO (2003) 129 Taxman 79 (Bombay)(Mag.) in which the honorable court have held that a belated return cannot be submitted after the expiry of one year form the end of the Assessment Year. If an assessment is made for the first time under section 147 then the assessee cannot be made liable to pay interest of the period during which it was not possible on the part of the assessee to....

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....ssment Year till issuance of notice u/s 148 of the Act. 8. The ld CIT(A) by following the ratio laid down in the aforesaid referred to the case of Priti Pithawala vs ITO (supra) directed the Assessing Officer to recalculate interest u/s 234A of the Act for twenty months. Now the department is in appeal. 9. The ld. DR strongly supported the order of the Assessing Officer. In his rival submissions, the ld counsel for the assessee reiterated the submissions made before the authorities below and strongly supported the impugned order passed by the ld CIT(A). He further submitted that the appeal filed by the department is not maintainable because it is belated and no application for condonation of delay has been moved by the department. ....