COMMISSIONER OF INCOME TAX Vs. MANOJKUMAR BERIWAL

JUDGEMENT

(1.) Having heard the parties, the appeal is admitted on question (b) as framed in Para 4 of the Appeal memo which is as under :

(2.) Section 249(4) is the provision whereby the remedy of the party is taken away, if there is non compliance with that provisions. It is well settled that when legislature seeks to make a law denying a remedy on failure to comply with deposit, the courts would save the remedy, if possible by the interpretative process. Further in taxing statute, if a view can be taken in favour of an assessee that view is ordinarily preferred.

(3.) On behalf of the assessee, the leaned counsel also brought to our attention the judgment of the Supreme Court in Harshad Shantilal Mehta Vs. Custodian and Others, 231 ITR 871. This was also under the provisions of the Income Tax Act. The issue for consideration in terms of Question 5, framed by the Supreme Court was whether the tax under Section 11(2)(a) would include interest on penalty as well. After considering the different concepts under the Income Tax Act, the learned Court was pleased to hold that the penalty and interest under the Income Tax Act are different concepts and that definition of tax under Section 2(43) does not include penalty or interest. In our opinion, the view taken by us finds support in these observations of the Supreme Court in the case of Harshad Mehta (supra). Considering the above, in our opinion, the Tribunal was right in the view taken. We accordingly confirm the view taken by the Tribunal.