Decided on September 09,1994



R.K. Bali, Accountant Member - (1.) THESE three appeals by the assessee directed against common order dated 10-5-1993 passed by the Dy. CIT(A), Amritsar in respect of assessment years 1985-86, 1986-87 and 1987-88 involve common issue and are, therefore, disposed of by a common order for the sake of convenience.
(2.) The common grounds taken by the assessee in these three appeals are as under:- That the Ld. ITO has grossly erred in levying interest Under Section 139(8) and the Ld. Dy. CIT(A) has grossly erred in sustaining the levy of interest under Section 139(8) for period beyond the date of actual filing of the return viz., 25-6-1990. That the voluntary return filed by the assessee on 25-6-1990 was to be taken as the actual date of filing the return for all the provisions of the Income-tax Act. Briefly the facts are that the assessee in this case filed the returns of income for the assessment years under consideration on 25-6-1990. No notice under Section 139(2) or under Section 148 was issued and served upon the assessee calling for the returns of income for the above assessment years. Since the returns were filed beyond the normal period allowed under Section 139(1), notices under Section 148 dated 15-3-1991 were issued subsequently to regularise these returns and in response to the said notices the assessee filed written reply stating that the returns filed on 25-6-1990 may be treated as the returns filed in response to these notices. The assessments were subsequently completed by the Assessing Officer vide orders dated 24-3-1993 and interest under Section 139(8) was charged by the Assessing Officer upto the date of regular assessment, which were completed under Section 143(3), read with Section 147(a)/148. The assessee filed appeals against the orders of the Assessing Officer and contended that since the assessee has filed the returns voluntarily and without receipt of any notices from the department on 25-6-1990 and the entire tax due was duly deposited at the time of filing of the returns the Assessing Officer should have charged interest only up to the date of filing of the returns, i.e., 25-6-1990 and not beyond this date. The Ld. Dy. CIT(A), however, upheld the orders of the Assessing Officer and the appeals filed by the assessee were dismissed on the reasoning that the returns filed on 25-6-1990 were belated returns and as such the Assessing Officer had rightly charged interest under Section 139(8). The assessee is in second appeal before us against the orders of the Dy. CIT(A).
(3.) SH. Makkar, Ld. DR, at the time of hearing raised a preliminary objection is entertaining the appeals filed by the assessee stating that the assessee had moved petition under Section 273A to the Commissioner of Income-tax, Amritsar, who vide his order dated 17-11-1993 has directed that interest chargeable under Sections 139(8) and 215/217 for the assessment years under consideration is reduced to 50% and the balance amount of interest if recovered should be refunded to the assessee. He accordingly submitted the assessee having once availed of the provisions of Section 273A, the appeals filed by the assessee challenging the action of the Assessing Officer on the same issue were incompetent and for that purpose the Ld. DR relied on the order of this Bench dated 11-6-1993 in the case of Akhara Sangalwala v. ACIT in ITA Nos. 1373 to 1381/Asr./1992. 4.1 SH. B.R. Abrol, Advocate, learned representative of the assessee, on the other hand submitted that objection raised by the Ld. DR is misplaced as the assessee is not at all challenging the order of the CIT passed under Section 273A, which has been accepted by her as the statute make the order passed under Section 273A as non-appealable. It was submitted that the assessed is aggrieved with the order of the Assessing Officer who has charged interest for late filing of the return under Section 139(8) upto the date of completion of the regular assessments and not upto the date of filing of the returns by the assessee. SH. Abrol submitted that the remedy available to the assessee under Section 246/253 and under Section 273A operate in different plains. Under Section 273A the assessee admits its liability to penalty or interest but approaches the CIT for waiver of penalty and interest after fulfilling certain conditions, whereas under Section 246/253 the assessee seeks relief from the chargeability of interest/penalty on the ground that the assessee is not liable to interest or penalty under the statute. SH. Abrol accordingly submitted since in the appeals filed by the assessee before the Dy. CIT(A) and now before the Tribunal, the assessee is challenging that the liability to interest is only upto the date of filing the return and not the date of framing of the assessments, the appeals filed by her are competent and should be disposed of on merits.;

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