M/s. Oswal Machinery Ltd., Ahmedabad V. The Tax Recovery Officer, Anand Range, Anand

ITA 3307/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1398 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 08-06-2016
• Assessment Year: 1998-1999
• Appeal Filed On: 30-11-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DEPAK SUTURIA

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA.NO.3307/AHD/2015 / ASSTT. YEAR: 1998-1999 M/S.OSWAL MACHINERY LTD. 143/B, VITTHAL UDYOGNAGAR DIST. ANAND 388 121. PAN : AAACO 3120 E VS TAX RECOVERY OFFICER ANAND RANGE ANAND 388 001. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI TUSHAR HEMANI REVENUE BY : SHRI DEPAK SUTURIA, SR.DR / DATE OF HEARING : 08/06/2016 / DATE OF PRONOUNCEMENT: 09/06/2016 $%/ O R D E R THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAIN ST THE ORDER OF THE LD.CIT(A)-4, BARODA DATED 14.08.2015 PASSED FOR THE ASSTT.YEAR 1998-99. 2. SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE L D.CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT APPEAL AGAINST THE ORD ER UNDER SECTION 220(2) IS NOT MAINTAINABLE. 3. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, I HAVE GONE THROUGH THE RECORD CAREFULLY. THE LD.AO HAS PASSED AN ORDER UN DER SECTION 220(2) OF THE INCOME TAX ACT, 1961 ON 14.10.2014. HE DETERMINED THE INTEREST REQUIRED TO BE LEVIED UPON THE ASSESSEE. DISSATISFIED WITH THI S ORDER, THE ASSESSEE FILED AN APPEAL BEFORE THE LD.FIRST APPELLATE AUTHORITY WHO DISMISSED THE APPEAL BY OBSERVING THAT NO APPEAL CAN BE BROUGHT BEFORE THE LD.CIT(A) AGAINST AN ORDER ITA NO.3307/AHD/2015 2 PASSED UNDER SECTION 220(2) OF THE INCOME TAX ACT. THE FINDING OF THE LD.CIT(A) READS AS UNDER: 3.3 I HAVE CONSIDERED THE SUBMISSIONS OF THE LD.AU THORISED REPRESENTATIVE AND ORDER OF THE AO. I AM NOT INCLI NED TO ACCEPT THIS APPEAL AS THE ORDER PASSED U/S.220(2) IS NOT AN APP EALABLE ORDER BEFORE THE CIT(A). ONCE THE QUANTIFICATION OF INCOME IS D ETERMINED, THE AO IS BOUND TO CALCULATE TAX AND INTEREST INCLUDING INTER EST U/S 220(2) OF THE ACT. THE CHARGING OF INTEREST U/S 220(2) IS MANDATO RY AND THE ASSESSEE HAS TO COMPENSATE BY WAY OF INTEREST FOR THE PERIOD DURING WHICH DEMAND REMAINED OUTSTANDING. HON'BLE SUPREME COURT IN THE CASE OF CENTRAL PROVINCE MANGANESE ORE CO. LTD. VS CIT [198 6] 160 ITR 961 (SC) HAS HELD THAT AN ORDER LEVYING INTEREST IS NOT APPEALABLE UNLESS LEVY OF INTEREST IS A PART OF PROCESS OF ASSESSMENT . IN SUCH A SITUATION IT IS OPEN TO AN ASSESSEE TO DISPUTE THE LEVY OF INTER EST PROVIDED HE LIMITS HIMSELF TO THE GROUND THAT HE IS NOT LIABLE TO LEVY AT ALL. CHARGING OF INTEREST U/S 220(2) IS NOT PART OF PROCESS OF ASSES SMENT. INTEREST U/S 220(2) IS LEVIED IN A CASE WHERE ASSESSEE BECOMES A DEFAULTER IN RESPECT OF THE TAX WHICH HAS BEEN DETERMINED. SINCE THE INCOME TAX ACT, 1961 DOES NOT PROVIDE ANY APPEAL AGAINST LEVY OF INTEREST U/S 220(2), THE APPEAL FILED BY THE ASSESSEE IS NOT MAI NTAINABLE UNDER SECTION 246A OF THE ACT AND HENCE, THE SAME IS DISM ISSED. 4. THE LD.COUNSEL FOR THE ASSESSEE WAS UNABLE TO CO NTROVERT THIS FINDING OF THE LD.CIT(A). HE WAS NOT IN A POSITION TO APPRISE ME THE POSITION OF LAW WHICH PROVIDE MAINTAINABILITY OF APPEAL AGAINST AN ORDER UNDER SECTION 220(2) OF THE INCOME TAX ACT. THEREFORE, I AM OF THE VIEW THAT THE LD.CIT(A) HAS RIGHTLY DISMISSED THE APPEAL OF THE ASSESSEE AS BEI NG NOT MAINTAINABLE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE COURT ON 9 TH JUNE, 2016 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 09/06/2016