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1980 Supreme(P&H) 146
PUNJAB & HARYANA HIGH COURT
Bhopinder Singh Dhillon and Gokal Chand Mital JJ.
Commissioner Of Income-tax
Versus
Raghubir Singh And Sons
Income tax Reference No. 94 of 1975,
Decided On : APRIL 15, 1980
No appeal lies from an order passed under Section 139(8) of the Income Tax Act, 1961 simpliciter.
Headnote:
INCOME TAX - Appeal - Order levying penal interest under Section 139(8) of the Income Tax Act, 1961 - Whether appeal lies - Held, no.
Fact of the Case:
The assessee, an HUF, was charged penal interest under Section 139(8) of the Income Tax Act, 1961 (the Act) for the assessment year 1967-68. The assessee challenged the levy of penal interest before the AAC, who dismissed the appeal in limine. The Tribunal allowed the assessee's appeal, holding that an appeal lay from the order of the Income-tax Officer levying interest under Section 139(8) of the Act.
Finding of the Court:
The High Court held that no appeal lies from an order passed under Section 139(8) of the Act simpliciter. The Court observed that the provisions of Section 246(1)(c) of the Act, which provides for appeals against certain orders of the Income-tax Officer, do not include orders passed under Section 139(8) of the Act. The Court further held that the Tribunal erred in relying on the Supreme Court decision in CIT v. Kanpur Coal Syndicate [1964] 53 ITR 225, as that case dealt with the denial of liability to pay tax under particular circumstances, and not with the payment of penal interest under Section 139(8) of the Act.
Issues: Whether an appeal lies from an order of the Income-tax Officer levying interest under Section 139(8) of the Income Tax Act, 1961.
Ratio Decidendi: The right of appeal is a creature of the statute. If the statute provides the right of appeal, the appeal is competent, but in case there is no provision for filing an appeal provided in the statute regarding a particular matter, no appeal shall lie. The provisions of Section 246(1)(c) of the Act do not provide for an appeal against an order passed under Section 139(8) of the Act simpliciter. Therefore, no appeal lies from such an order.
Final Decision: The question of law referred to the High Court was answered in the negative, i.e., in favour of the revenue and against the assessee.
B.S.Dhillon, J.
1. The assessee is an HUF and the assessment year under reference is 1967-68 of which the relevant previous year ended on 31st March, 1967. In the assessment order made by the ITO for this assessment year on 28th February, 1972, he charged penal interest amounting to Rs. 1,992 under Section 139(1) of the I.T. Act (hereinafter referred to as " the Act "). The interest so charged was included in the notice of demand served on the assessee under Section 156 of the Act.
2. The assessee preferred an appeal to the AAC contending that the levy of penal interest was illegal and was not warranted by the facts of the case. The AAC dismissed the appeal in limine, vide his order dated 8th August, 1972, on the short ground that no appeal lay on the point. The AAC did not go into the merits of the assessees appeal.
3. The assessee filed an appeal before the Income-tax Appellate Tribunal, Delhi Bench (B) (hereinafter referred to as " the Tribunal "). The Tribunal, vide its order dated the 19th December, 1973, accepted the appeal of the assessee holding that the appeal filed by the assessee was competent.
4. At the instance of the revenue, the following question of law has been referred to this court for its opinion by the Tribunal :
" Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that an appeal lay from the order of the Income-tax Officer levying interest under Section 139(8) of the Income-tax Act, 1961 ? "
5. The provisions of Sub-section (8) of Section 139 of the Act are as follows :
" 139. (8) (a) Where the return under Sub-section (1) or Sub-section (2) or Sub-section (4) for an assessment year is furnished after the specified date, or is not furnished, then (whether or not the Income-tax Officer has extended the date for furnishing the return under Sub-section (1) or Sub-section (2)) the assessee shall be liable to pay simple interest at twelve per cent. per annum, reckoned from the day immediately following the specified date to the date of the furnishing of the return, or, where no return has been furnished, the date of completion of the assessment under Section 144, on the amount of the tax payable on the total income as determined on regular assessment, as reduced by the advance tax, if any, paid, and any tax deducted at source : Provided that the Income-tax Officer may, in such cases and under such circumstances as may be prescribed, reduce or waive the interest payable by any assessee under this sub-section.
Explanation 1.--For the purposes of this sub-section, specified date , in relation to a return for an assessment year, means,-- (a) in the case of every assessee whose total income, or the total income of any person in respect of which he is assessable under this Act, includes any income from business or profession, the date of the expiry of four months from the end of the previous year or where there is more than one previous year, from the end of the previous year which expired last before the commencement of the assessment year, or the 30th day of June of the assessment year, whichever is later ;
(b) in the case of every other assesses, the 30th day of June of the assessment year.
Explanation 2.--For the purposes of this sub-section, where the assessee is a registered firm or an unregistered firm which has been assessed under Clause (b) of Section 183, the tax payable on the total income shall be the amount of tax which would have been payable if the firm had been assessed as an unregistered firm. (b) Where as a result of an order under Section 154 or Section 155 or Section 250 or Section 254 or Section 260 or Section 262 or Section 264, the amount of tax on which interest was payable under this sub-section has been reduced, the interest shall be reduced accordingly, and the excess interest paid, if any, shall be refunded."
6. Under Rule 117A framed under this sub-section, the ITO has been empowered to reduce or waive the interest payable under
