COMMISSIONER OF INCOME TAX Vs. MUNNALAL SHRIKISHAN

JUDGEMENT

(1.) Before we deal with the questions raised at the instance of the Revenue, we may dispose of a preliminary objection raised by learned counsel for the assessee. Sri B.N. Bhatnagar, learned counsel for the assessee, submitted that in view of the fact that notice of refusal by the Tribunal under Section 256(1) of the Income-tax Act was served on the Commissioner of Income-tax on June 25, 1986, the application filed by it on January 1, 1987, was barred by limitation by six days. It was urged that the period prescribed under Section 256(2) is six months which ought to be taken as 180 days. Learned counsel placed reliance on a decision of this court in the case of CIT v. Laxmi Rattan Cotton Mills Co. Ltd. [1974] 97 ITR 285, in support of his contention that the limitation should be calculated treating each of the six months as meaning 30 days. We are unable to agree with this contention. The decision cited by learned counsel for the assessee was in the context of Section 271(1)(a) which deals with an entirely different subject. This court, construing that provision, held that inasmuch as penalty leviable under Section 271(i)(a) has to be calculated by deducting the amount of tax already paid and not with respect to the gross tax assessable, the word " month " occurring in Section 271(1)(a) must be taken to mean a period of 30 days. The contextual setting of Section 271(1) is entirely distinct and different from Section 256(2). There is nothing in the context of Section 256(2) to warrant the meaning assigned to the word " month " in the aforesaid decision to an application filed under Section 256(2) of the Act. In our opinion, the reference to six months in Section 256(2) is to six calendar months. The preliminary objection is, therefore, overruled.

(2.) Having heard learned counsel for the Revenue as well as learned counsel for the assessee, we are of the opinion that the following question, namely : " Whether, on the facts and in the circumstances of the case, the Hon'ble Tribunal is legally right in holding that there is an error in charging interest under Section 220(2) of the Income-tax Act, 1961 ? " does arise out of the order of the Tribunal. The second question is, in our opinion, covered by the first question and hence it is not necessary to call for a statement in respect thereof. The third question does not, in our opinion, arise out of the order of the Tribunal.

(3.) We accordingly direct the Income-tax Appellate Tribunal, Delhi Bench "C", New Delhi, to state the case in respect of the first question referred to above and submit the same for the opinion of this court. The application is, therefore, partly allowed.