DEO SHARMA PT Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) MR . Das on behalf of the opposite party has raised a preliminary objection and has pointed out that the order passed by the ITO was under S. 18A (6) of the Indian IT Act. The assessee, having paid in advance less than eighty per cent. of the tax determined on the basis of the regular assessment, was made liable to pay simple interest at the rate of six per cent. per annum. Learned counsel has drawn our attention to the provisions of S. 30(1) of the Indian IT Act and has pointed out that the order under S. 18A (6) was not appealable. An appeal was, however, filed by the assessee before the AAC but no objection was raised to the maintainability of the appeal and the AAC dismissed the appeal on the merits. Then there was a further appeal filed under S. 33 (1) before the Tribunal which also dismissed the appeal on the merits. Learned counsel has pointed out that the order of the AAC and the Tribunal being completely without jurisdiction, the order of the Tribunal cannot be deemed to be an order under S. 33. In case the AAC or the Tribunal, in the wrongful assumption of jurisdiction, had varied that order to the disadvantage of the assessee, it may have been possible to ask for a reference for the decision of the question whether they had any jurisdiction to do so; but, they having merely dismissed the appeals, the effect of the order of the ITO remained and, as there was no appeal provided for against that order, the order of the Tribunal cannot be treated as an order under S. 33 against which a reference is provided for under S. 66. This reference cannot be entertained and is rejected. We make no order as to costs.