1980 PLP 351 (PTD)

R. L. GULATI, J.‑‑The petitioner was assessed to Income‑tax for the assess ment years 1956‑57, 1957‑58, 1958‑59, 1960‑61 and 1962‑63, by the Income‑tax Officer, (Central) Circle 1, Meerut. Penal interest under section 18‑A(6) of the Indian Income‑tax Act 1922 (hereinafter referred to as "the Act"), was charged for all the years as the petitioner had failed to pay proper amount 4 advance tax as required under subsections (1), (2) and (3) of section 18‑A. The petitioner applied to the Income‑tax Officer for waiver of interest. The applications were made under section 35 read with rule 48 of the. Indian income‑tax Rules, 1922. (The application for the year 1962‑63 was made under rule 40 of the Income‑tax Rules, 1962, which corresponds to rule 48 the Indian Income‑tax Rules, 1922). These applications were rejected. The petitioner then moved the Commissioner of Income‑tax, Delhi (Central), New Delhi the respondent No. 1 under section 33‑A(2) of the Act by means of five separate applications. All the five applications were rejected by the Commissioner by a consolidated order dated January 31, 1972 February 8, 1972 on the ground, (i) that the petitioner's applications were time‑barred, and (ii) that for the assessment years 1956‑57 and 1958‑59, the question of penal interest had been made the subject‑matter of appeal before the Income-tax Appellate Tribunal and as such the revision applications 4ere not maintainable. This order of the Commissioner has been challenged by means of this petition under Article 226 of the Constitution. Under section 18‑A(1) of the Act, the Income‑tax Officer may require an assessee to pay quarterly income‑tax and super‑tax calculated on the basis of his latest completed assessment. This tax is known as advance tax and is adjusted against the regular assessment for the assessment year in which the tax is paid. Under subsections (2) and (3) an whom a notice under section 18‑A(1) has been served, or who not hitherto been assessed, can before the 15th day of March of each financial year, file his own estimate of the income of the assessment year and tax on the basis thereof, Subsection (6) of section 18‑A then that where in any year an assessee has paid tax under subsection(2) or subsection(3) on the basis of his own estimate, and the tax so paid less than eighty per cent of the tax determined on the basis of the regular assessment, simple interest at the rate of 6 percent per annum from the 1st day of January in the financial year in which the tax was paid up to the date of the said regular assessment shall be payable by the assessee upon the amount by which the tax so paid falls short of the said eighty percent Subsection (6) of section 18‑A, as originally enacted, left no discretion with the Income‑tax officer so that if the estimate fell below the prescribed limit, the Income‑tax Officer was bound to charge interest. However, by Act No. 25 of 1953 which was enacted with retrospective effect from April 1, 1952, the following proviso was added as the fifth proviso to section 18(6): "Provided further that in such cases and under such circumstances as may be prescribed, the Income‑tax Officer may reduce or waive the interest payable by the assessee." In order to give effect to this proviso the Central Government added in December, 1953, rule 48 to the Indian Income‑tax Rules, 1922 which sets out the circumstances which the Income‑tax Officer is required to take into consideration while considering the question as to whether penal interest chargeable under section 18‑A(6) should be waived or reduced. The corresponding rule in the Income‑tax Rules, 1962, is rule

40. As the Income‑tax Officer had not waived or reduced the interest the petitioner moved the Income‑tax Officer under section 35 read with rules 48/40 requesting him to waive the interest. These application were rejected. On the rejection of these applications, the assessee moved the Commissioner under section 33‑A(2). Under section 33‑A(2) an assessee has been given the right to move the Commissioner for the revision of an order passed by an authority subordinate to him. The application is to be made within one year of the date of the order. The first question that has to be considered is as to whether the revision applications were time barred. Now, it is not in dispute that it the period of limitation is counted from the date of the order passed by the Income‑tax; Officer rejecting the petitioner s applications under section 35, the application for revision would be in time. But the Commissioner has counted the limitation from the date of the assessment order on the ground that waiver or reduction of interest shall be deemed to have been decided by the Income‑tax Officer at the time when he passed the regular assessment order. In our opinion, the view taken by the Commissioner is patently erroneous. It is true that ordinarily an Income‑tax Officer is supposed to consider the question of waiver or reduction of interest at the time he makes the regular assessment. But, in such a case, he would be required to give a notice to the assessee so as to afford him an opportunity of showing that the circumstances enumerated in rules 48/40 exit and waiver or reduction of interest is called for. In the instant case no such notice was given to the assessee and the question of waiver or reduction of interest was not considered by the Income‑tax Officer at all. Indeed. When the petitioner moved the Income‑tax Officer under section 35 the latter did not reject the applications on the ground that he had already considered that question while passing the assessment orders. In these circumstances, the assessee was entitled to move the Income‑tax Officer for waiver or reduction of interest. The order passed on these applications was an order independent of the assessment order and the Commissioner could be asked to revise the same. Limitation in such a case would start from the date of the order which was sought to be revised and not from the date of the assessment order. The Commissioner has relied upon a decision of the Supreme Court in the case of S. A. L. Narayan Raw v. Ishwarlal Bhagwandas (1965) 57 I T R 149 (S C). That case does not lay down a contrary proposition. There the Income‑tax Officer had omitted to charge interest under section 18‑A(6) at the time of regular assessment. He wanted to rectify the assessment order under section 35 by charging interest. The Supreme Court held that the failure to charge interest at the time of regular assessment could not be attributed to any mistake on the face of the record, but could be attributed to the discretion vested in him under the fifth proviso to section 18‑A(6) read with rule

48. That cases does not lay down that if the Income‑tax Officer omits to consider the assessment, he cannot be required by the assessee to consider the matter and rectify the assessment order. We, accordingly, hold that the revision applica tions of the petitioner were not barred by time. The second ground upon which the applications of the petitioner relating to the assessment years 1956‑57 and 1958‑59, have been rejected is based upon the proviso to section 33‑A(2), clause (c), which provides that the Commissioner shall not revise any order if the same "has been made the subject of an appeal to the Appellate Tribunal". Now, in these two years the petitioner had raised the question of levy of penal interest before the Appellate Assistant Commissioner of Income‑tax and, thereafter, before the Income‑tax Appellate Tribunal in his appeals against the regular assessments But an order under section 18‑A(6) is not an appealable order. Subsection (1) of section 30 enumerates the orders passed under the Income‑tax Act which are appealable to the Appellate Assistant Commissioner of Income‑tax. An order under section 18‑A(6) does not find a place in that provision. Thus, no appeal lies to the Appellate Assistant Commissioner of Income‑tax and, consequently, no appeal would lie to the Income‑tax Appellate Tribunal. Indeed, the Income‑tax Appellate Tribunal refused to entertain the ground relating to the interest for this very reason. Thus, even if the petitioner had appealed against the levy of interest, since the appeal was not maintain able, it could not be said that the question of interest, had been made the subject of appeal before the Tribunal. That no appeal lies against penal interest under section 18‑A(6) is fully supported by a decision of this Court in Pt. Deo Sharma v. Commissioner of Income‑tax (1953) 23 I T R 226 (All.). Thus, the Commis sioner was clearly in error on this point also. We, accordingly, allow this petition and quash the order of the Com missioner dated January 31, 1972/February 8, 1972, and direct him to restore the revision petitions of the petitioner to their original numbers and dispose them of on merits. The petitioner is entitled to the cost of this petition. Petition allowed.