MOOLCHAND PATTI Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE Tribunal has referred the following question of law, for opinion of this Court under s. 256(1) of the IT Act, 1961, in respect of asst. yr. 1981-82 which arise out of the order of the Tribunal dt. 14th Nov., 1986 :

(2.) THE material facts relevant for deciding the above question are that the assessee is a partnership firm and the assessment was completed under s. 143(1) of the IT Act on 4th Oct., 1983. While passing the said order, interest under s. 139(8) of the Act was not charged from the assessee. Proceedings under s. 154/155 were initiated and an objection was taken that since the order of assessment has not directed to charge the interest under s. 139(8), which must be presumed to have been waived and, which is being a disputed point, interest cannot be charged by invoking the provisions of s. 154/155 of the Act. THE ITO was of the view that, charging of interest under s. 139(8) is obligatory unless it is waived by a specific order. Since there is no specific order for waiver, non-charging of interest is mandatory and constitute mistake apparent from record. THE interest was accordingly charged by order dt. 26th Aug., 1985.

(3.) WE are, therefore, of the opinion that the Tribunal was right in holding that interest under s. 139 (8) could be levied by invoking the provisions under s. 154, when no such charge had been made in the original assessment passed under s. 143(1). The reference application is accordingly answered in favour of the Revenue and against the assessee. No order as to costs.