TaxTMI 
TaxTMI 
2020 (10) TMI 501
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....nder section 260A is not appealable under section 246A. The action of the learned Commissioner of Income-tax is illegal, unjustified and arbitrary and against the facts of the case. Appropriate relief may please be granted. 2. In the facts and in the circumstances of the case and in law the learned Commissioner of Income-tax has erred in charging interest of Rs. 13,63,760 under section 220(2) in ITNS 150, i. e., section 143(3) read with section 260A while giving appeal effect of the order of the hon'ble Rajasthan High Court. The action of the learned Assessing Officer is illegal, unjustified and arbitrary and against the facts of the case. Relief may please be granted by quashing the said charge of interest of Rs. 13,63,760. 3. In the facts and in the circumstances of the case and in law the learned Commissioner of Income-tax has erred in charging interest of Rs. 4,43,248 under section 234D in ITNS 150, i. e., section 143(3) read with section 260A while giving appeal effect of the order of the hon'ble Rajasthan High Court. The action of the learned Assessing Officer is illegal, unjustified and arbitrary and against the facts of the case. Relief may please ....
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....e meantime, the assessee paid the tax after the orders of the learned Commissioner of Income-tax but after the order of this Tribunal granting the relief to the assessee, the Assessing Officer granted refund along with the interest. Since the issue was finally settled and decided by the hon'ble jurisdictional High Court, therefore, to give effect to the judgment of the hon'ble High Court, the Assessing Officer passed the giving effect order raising the demand along with the interest under sections 244A, 220(2) and 234D of the Income-tax Act. The details of the demand as well as interest raised by the Assessing Officer while passing giving effect order dated June 17, 2016 are as under : AY Balance demand Interest under section 244A Interest under section 220(2) Interest under section 234D Total payable 2002-03 11,18,684 1,86,479 13,63,760 4,43,248 31,12,171 2003-04 19,71,966 4,53,552 27,32,800 10,78,073 62,36,391 2004-05 11,52,998 2,36,362 28,42,211 - 42,31,571 Total 42,43,648 8,76,393 69,38,771 15,21,321 The interest under section 244A is the amount which was earlier pa....
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.... charged under section 220(2) is part of the assessment and is deemed to be tax for the purpose of section 246 of the Income-tax Act and consequently the appeal filed by the assessee against such order of the Assessing Officer objecting to the amount of interest is maintainable. The learned authorised representative has then relied upon the judgment of the hon'ble Calcutta High Court in the case of Kooka Sidhwa and Co. v. CIT [1964] 54 ITR 54 (Cal) and sub- mitted that the order passed by the Assessing Officer to give effect to the directions of the appellate authority is an appealable order as held by the hon'ble High Court. He has then relied upon the judgment of the hon'ble Bombay High Court in the case of Empire Industries Ltd. v. CIT [1992] 193 ITR 295 (Bom) ; 59 Taxman 443 (Bom) and submitted that the hon'ble Bombay High Court has also taken a similar view that the order passed by the Assessing Officer to give effect to the order of the appellate authority is an appealable order and the appeal filed by the assessee is maintainable. Similarly he has relied upon the hon'ble Andhra Pradesh High Court in the case of Bakelite Hylam Ltd. v. CIT [1988] 171 ITR 34....
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....profit and loss account Rs. 7,02,72,801 Add : Depreciation for separate consideration Rs. 25,56,045 Rs. 7,28,28,846 Add : expenses disallowed- (i) Income-tax 84,28,958 (ii) Charity and donation 17,82,422 (iii) Delayed PF payment under section 1 35,081 (iv) Delayed PF payment under section 43B 39,786 (v) On account of telephone expenses 45,357 (vi) On account of travelling and conveyance 22,199 Rs. 1,03,53,803 Rs. 8,31,82,649 Less : DEPB for separate considered 2,29,806 Less : Depreciation as claimed 25,56,045 Rs. 27,85,851 Gross income from business and profession Rs. 8,03,96,798 Less : 1. Deduction under section 80-IB as calculated above 1,22,73,389 ....
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....hdrawal of interest under section 244A which was granted along with the refund. The main grievance of the assessee is against the interest levied under section 220(2) of the Act and, therefore, the said computation of Income-tax in pursuant to the judgment of the hon'ble High Court was challenged by the assessee before the learned Commissioner of Income-tax (Appeals). The learned Commissioner of Income-tax (Appeals), as we have discussed earlier, has dismissed the appeal of the assessee in limine being not maintainable as the said order of the Assessing Officer in computing the Income-tax liability/demand is not appealable. The learned authorised representative of the assessee has relied upon a series of decisions in support of the contention that the order passed by the Assessing Officer in pursuant to the appellate authority is an appealable order. It is pertinent to note that there are divergent views on this issue about the maintainability of the appeal against the order of the Assessing Officer and particularly levying the interest under section 220(2) in pursuant to the order/judgment of the appellate forum. The learned Commissioner of Income-tax relied upon the judgment ....
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....6(1) of the Act. The said pro vision, as applicable to the case of the assessee in the relevant year when the appeal was preferred, reads as under : '246. Appealable orders.-(1) Subject to the provisions of sub-section (2), any assessee aggrieved by any of the following orders of an Assessing Officer (other than the Deputy Commissioner) may appeal to the Deputy Commissioner (Appeals) (before the 1st day of June, 2000) against such order :. . . (c) an order under section 154 or section 155 having the effect of enhancing the assessment or reducing a refund or an order refusing to allow the claim made by the assessee under either of the said sections.' The order under section 154 of the Act had the effect of enhancing the assessment. Such orders are appealable on all aspects decided and adjudicated. The order under section 154 of the Act had also specifically dealt with and examined the question of interest under section 220(2) of the Act and the date from which the interest was chargeable. The direction to charge interest was specifically given in the order under section 154 of the Act. The claim and contention of the appellant-assessee to the....
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.... assessment or reducing the refund or refusing to allow the claim made by the assessee under either section 154 or section 155.' In the case of Empire Industries Ltd. v. CIT [1992] 193 ITR 295 (Bom) the assessee had paid advance tax of Rs. 24.47 lakhs on regular assessment being completed under section 143(3). The Assessing Officer raised the demand under section 156 of the Act of Rs. 7.27 lakhs including interest of Rs. 56,000. By order dated June 27, 1974 the appellate authority allowed the appeal partly. While giving effect to the appellate order, the Income-tax Officer determined the amount refundable to the assessee at Rs. 9.46 lakhs. The amount was refunded but interest thereon under section 214 of the Act was not paid. Being aggrieved, the assessee filed an appeal before the appellate authority and claimed that the Income-tax Officer ought to have granted interest under section 214. The appellate authority and the Tribunal held that the appeal was not competent. On a reference, it was held by the Bombay High Court that the Income-tax Officer's order had been passed under section 154 and appeal therefrom was competent under section 246(1)(f). This judgment, t....