- (1.) ON an application filed under Section 256(2) of the Income-tax Act, 1961, the Tribunal has referred the following questions for our opinion : "Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in confirming the order of the Commissioner of Income-tax (Appeals) by which he had restored the matter regarding levy of interest under Section 216 to the Inspecting Assistant Commissioner for fresh consideration and rejecting the assessee's additional ground raised in this behalf ? Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the expenditure of Rs. 2,500 incurred by the assessee in the preparation of the income-tax return was covered by Section 80VV of the Income-tax Act and, therefore, not allowable under Section 37 of the Income-tax Act, 1961 ?"
(2.) THE assessee filed the return of income on June 22, 1982, declaring a total income of Rs. 84,66,140. THE relevant assessment year is 1982-83. While making the assessment, the Assessing Officer charged interest under Section 216 of the Income-tax Act, 1961. In appeal before the Commissioner of Income-tax (Appeals), the Commissioner of Income-tax (Appeals) has taken the view that as there was no speaking order, therefore, he restored the file to the Inspecting Assistant Commissioner (Assessment), i.e., the Assessing Officer. The assessee has not challenged this order of the Commissioner of Income-tax (Appeals), but raised this ground before the Tribunal. The Tribunal rejected this ground of the assessee and observed as under : "An additional ground was taken up before this Tribunal on November 17, 1984, praying that the Commissioner of Income-tax (Appeals) had instead of accepting the assessee's submission that the levy of interest of Rs. 31,347 under Section 216 without passing a speaking order, had directed the Inspecting Assistant Commissioner (Assessment) to pass a speaking order. In fact the order for levy of interest should have been cancelled together. This ground was never formally admitted by the Bench but at the time of hearing of this appeal, it was argued that the Commissioner of Income-tax (Appeals) order in this behalf should be set aside. In the assessment order, a copy of which has been filed before us, there is a reference to the charging of interest though the reasons for that direction are not given. The Commissioner of Income-tax (Appeals) has directed the assessing authorities to give reasons. No objection was raised to the order of the Commissioner of Income-tax (Appeals) before us in the first instance. The objection even before the Commissioner of Income-tax (Appeals) was that the Inspecting Assistant Commissioner had erred in not giving any reason for charging of this interest. We, therefore, find no reason for allowing the assessee to take up this ground at this stage or any substance in this ground on merits which is hereby rejected." Thereafter a miscellaneous application was filed and that was also rejected by the Tribunal on May 20, 1986. In the second question, there is a dispute regarding the claim of Rs. 16,102 spent by the assessee on legal charges paid to advocates and chartered accountants. Out of that amount, the Assessing Officer allowed only Rs. 5,000 under Section 80VV and the balance amount has been disallowed. The assessee further challenged the balance amount disallowed by the Assessing Officer. In appeal before the Tribunal, the Tribunal relying on its earlier decision for the assessment year 1978-79 similarly disallowed a sum of Rs. 2,090 over and above the amount estimated under Section 80VV. Heard learned counsel for the parties. The admitted facts are that the Income-tax Officer charged interest under Section 216 of the Income-tax Act. The matter was restored back to the Inspecting Assistant Commissioner (Assessment) by the Commissioner of Income-tax (Appeals) to decide the issue afresh and pass speaking order.
(3.) MR. Mehta, learned A.G. submits that when the order was not speaking and there was no application of mind, while charging interest under Section 216, therefore, that order should liable to be set aside. Mr. Singhi, learned counsel for the Department, submits that if the order is not speaking and no reasons are given, the Commissioner of Income-tax (Appeals), has rightly restored the matter back to the Assessing Officer to pass a fresh order and give reasons for charging interest under Section 216 of the Act. Considering the submissions and in practice for charging the interest under Section 216, no detailed reasons need to be given by the Assessing Officer, when the Commissioner of Income-tax (Appeals) has restored the matter back to the Assessing Officer to pass a fresh order and give reasons for charging the interest, we do not find any infirmity in such direction. ;