AJIT K.SENGUPTA, J. - (1.) IN this application under S. 256(2) of the IT Act, 1961, the following questions of law were sought to be referred to this Court. " (i) Whether, on the facts and in the circumstances of the case and on a reading of the application for condonation of delay and the affidavit, the Tribunal is justified in law to reject the affidavit and to condone the delay for the entire period including the day of filing ? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal exceeded the jurisdiction by admitting without considering the delay of the last day being the filing day of appeal for which no prayer or petition was made ? (iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in allowing the appeal bypassing the argument of counsel for the assessee made in respect of fraud, framing the charge in the notice under S. 154 and without withdrawing the power delegated by the ITO to his subordinate in rectifying the alleged mistake ? (iv) Whether, on the facts and in the circumstances of the case and on the reading of the assessment order delegating the power by the ITO to charge interest, reason for framing charges under S. 154, the alleged 'no objection' of the assessee, the legal aspect thereof the assumption of jurisdiction of the ITO, the mistake on mistake, the debatable point of law, and the order of rectification-the Tribunal was justified to allow the appeal ?
(2.) THE ITO, in the assessment order, made the following observation : "Charge interest under S. 139(8)". Although a direction was there for charging interest, the interest was not charged. The ITO, thereafter, passed the following order under S. 154 of the IT Act, 1961 : " In this case, the assessment was completed under S. 143(3)/ 182 on January 25, 1982, by my predecessor with a specific direction to charge interest under S. 139(8) for late filing of the return. It appears from the records that while calculating the taxes payable on regular assessment as above, interest payable under S. 139 was omitted to be charged. This being a mistake apparent from the record, a show-cause notice under section l54 was issued and served on the assessee. In reply, Sri S. Chatterjee, authorised representative appeared and stated that he had no objection to the proposed rectification of mistake. Accordingly, the mistake is being rectified as per computation below: Interest on above from July 1, 1979 to December 31, 1980, comes to Rs. 5,886. Charge interest as above and issue demand notice and challan along with the copy of the order."
(3.) AGAINST the said order of the ITO under S. 154 of the IT Act, 1961, the assessee preferred an Total income assessed Rs. 1,06,800 Tax as unregistered firm Rs. 49,772 Less : Advance tax paid Rs. 17,000 . Rs. 32,772 appeal before the AAC. The AAC observed as follows : " It is a fact that the ITO has imposed penal interest under S. 139(8) for the first time taking the help of S. 154 and this matter is highly debatable and different Courts held different Views in these circumstances. Hence, the imposition of penal interest under S. 139(8) amounting to Rs. 5,886 with the help of S. 154 is not valid and is deleted accordingly and the ITO is directed to delete the penal interest at his end for the asst. yr. 1979-80." ;