COMMISSIONER OF INCOMETAX Vs. ZIABANU MALAK

JUDGEMENT

(1.) THIS is an application under S. 256(2) of the IT Act, 1961, ('the Act') for directing the Tribunal to state the case and to refer to the High Court for its opinion following question of law:-

(2.) THE regular assessment made for the asst. yrs. 1970-71, 1971-72, 1972-73, 1973-74, 1976-77 were reopened and reassessment made under S. 147, r/w S. 144, of the Act. Interest under S. 139 (8) and S. 215 of the Act was levied by the ITO on the basis of reassessments. The assessee challenged the said levy of interest before the CIT in appeal. Being unsuccessful, the assessee resorted to second appeal before the Tribunal. The assessee had contended that the assessments reopened under S. 147 and completed thereafter under S. 144 were not 'regular assessments' as contemplated under S. 2(40) of the Act and, hence, the provisions of S. 139(8) and S. 215 regarding levy of interest were not attracted. The Department had contended that 'assessment' as defined by S. 2(28) includes also reassessment and, hence, restricted view of S. 139(8) and S. 215 was put forth on behalf of the assessee and as a result the second appeals were allowed by a common order. The application for reference under S. 256(2) made on behalf of the CIT was rejected on the ground that the point involved was covered by a binding division of this Court in the case of D. Swarup, ITO vs. Gammon India Ltd. (1982) 28 CTR (Bom) 264 : (1983) 141 ITR 841.

(3.) CASE of Charles D'Souza vs. CIT (1984) 40 CTR (Kar) 353 : (1984) 147 ITR 694 (Kar) is a direct division of the Karanataka High Court on the question of interest under S. 217 of the Act. It has taken a similar view of the definition of the term 'regular assessment' as meaning only assessment under S. 143/144 and not including reassessments done under S. 147 or completed after issue of notice under S. 148 of the Act. It may be noticed that the SLP filed by the Department against the said decision has been dismissed by the Supreme Court [SLP (Civil) No.8215 of 1985 decided on 10th Sept. 1990 CIT vs. Charles D'Souza (1990) 186 ITR (St) 28].