BHIKHOOBHAI N SHAH Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) IN this case, at the instance of the assessee the following question has been referred to us for our opinion : 'Whether, on the facts, and in the circumstances of the case, the Tribunal was justified in law in holding that there was no right of appeal under the provisions of section 246 of the Income -tax Act, 1961, against levy of interest under section 139 and 217 of the Act ?'

(2.) IN this case, we are concerned with the assessee who is an individual and the assessment year under reference is 1971 -72, the relevant accounting period being samvat year 2026. The assessee filed his return of income on December 31, 1971, and the period for filing the return was extended up to December 31, 1971, by appropriate order passed by the Income -tax Officer in charge of the assessee's case. The assessee who is an individual carries on business in cloth and coal on wholesale basis. The Income -tax Officer, at the time of completing the assessment, passed an order to the following effect :

(3.) IN order to appreciate the contentions raised in this reference, it is necessary to refer to some of the provisions of the Income -tax Act, 1961. Under section 139 the provision is made for return of income by every person and under the provisions of that section as it stood at the relevant time, interest at nine per cent. per annum was payable from the 1st day of October or the 1st day of January, as the case may be, of the assessment year to the date of the furnishing of the return, irrespective of whether the time for filing the return had been extended on a request made by the assessee, because, depending upon the category in which the assessee fell,the last date for filing the return without liability to pay interest even on the extension was September 30 or December 31, as the case might be, the interest was not to be charged and the interest became chargeable irrespective of extension from October 1st January 1st of the assessment year under consideration. It is common ground before us that the assessee before us falls within the category of those whose returns even on extension were required to be filed before September 30 of the assessment year under consideration if he wanted to avoid the payment of interest.