S. MAGESHWARI Vs. ASSISTANT COMMISSIONER OF INCOME-TAX

JUDGEMENT

(1.) AS the appeals lie in a very narrow compass, they are admitted and heard for final disposal. These two appeals are preferred against the order dated September 15, 1992, passed by the learned single judge in Writ Petitions Nos. 27470 and 27471 of 1992. The learned single judge has rejected both the petitions on the ground that the properties which are brought for sale for recovery of the amount due under the assessment orders produced as annexures 'A' and 'A -1' in the writ petition do not belong to the assessee and further the petitioner assesses has filed the objections to the same, and as such, the authorities are required to consider the objections and take appropriate action in accordance with law. But the grievance made by Sri G. Chander Kumar, learned counsel for the appellant, is that, in the writ petitions, the petitioner has made two prayers : (1) to quash to orders of attachment of the properties and bringing them for sale as per annexures 'L' and 'O' dated April 16, 1992, and August 19, 1992, respectively, produced in the writ petitions; and (2) to quash that portion of the order of assessment dated November 30, 1990, made for the assessment year 1984 -85 relating to levy of penal interest under sections 139(8) and 217 of the Income -tax Act, 1961 (hereinafter referred to as the 'Act'), produced at annexure 'A' in the writ petition. It is submitted that, whether the properties attached should be sold or not would depend upon the validity or otherwise of the aforesaid order of assessment relating to levy of penal interest, because the tax assessed has been paid. It is also contended that the order of assessment made for the assessment year 1984 -85, in so for as it levies penal interest, is not applicable, as the assessee is not aggrieved by the quantum of assessment. In other words, it is submitted that when the quantum of assessment is not challenged, the appeal challenging the validity of levy of penal interest alone cannot be maintained, having regard to the provisions contained in section 246 of the Act, therefore, the appellant -petitioner is entitled to invoke the jurisdiction of this court under articles 226 and 227 of the Constitution.

(2.) REGARDING the validity of the penal interest levied under the assessment order dated November 30, 1990, made for the assessment year 1984 -85, it is submitted that the assessment order is passed in a reassessment proceeding and as such, in a reassessment proceeding, penal interest cannot at all be levied, as held by this court in Charles D'Souza v. CIT : [1984]147ITR694(KAR) , and affirmed by the Supreme Court in S. L. P. (Civil) No. 8215 of 1985 in CIT v. Charles D'souza [1990] 186 ITR 28.

(3.) AS far as the merits of the claim of the petition -appellant are concerned, it is fairly submitted by learned standing counsel for the Department that the matter is covered against the Department by a decision of a Division Bench of this court in Charles D'Souza v. CIT : [1984]147ITR694(KAR) , which is also affirmed by the Supreme Court.