Gujarat H.C : Whether, the Tribunal is right in law and on facts in holding that against the order passed by the ITO under s. 154 of the Act appeal is maintainable under s. 246 of the Act ? 2. Whether, the Tribunal is right in law and on facts in holding that the assessee is entitled to interest under s. 214 of the IT Act ?

High Court Of Gujarat

CIT vs. Industrial Machinery Mfg. (P)Ltd.

Sections 214, 246(1)(f), 246(2)(a)

Asst. Year 1983-84

D.A. Mehta & Ms. H.N. Devani, JJ.

IT Ref. No. 96 of 1995

19th January, 2006

Counsel Appeared

Tanvish U. Bhatt, for the Applicant : Manish J. Shah, for the Respondent

JUDGMENT

D.A. Mehta, J. :

The Tribunal, Ahmedabad Bench ‘A’, has referred the following two questions under s. 256(1) of the IT Act, 1961 (the Act), at the instance of CIT :

“1. Whether, the Tribunal is right in law and on facts in holding that against the order passed by the ITO under s. 154 of the Act appeal is maintainable under s. 246 of the Act ? 2. Whether, the Tribunal is right in law and on facts in holding that the assessee is entitled to interest under s. 214 of the IT Act ?”

2. The assessment year is 1983-84. While passing order giving effect to the order of the Tribunal on 18th Aug., 1988, the AO did not grant interest under s. 214 of the Act, though the order had resulted in refund. The assessee carried the matter in appeal before the CIT(A), who dismissed the appeal by holding that “No appeal lies to CIT(A) under s. 246 against the AO’s non-granting of interest under s. 214 of the IT Act”.

The assessee carried the matter in appeal before the Tribunal and succeeded. The Tribunal accepted the claim of the assessee that an appeal is maintainable under s. 246(1)(f) of the Act against an order made by the AO under s.154 of the Act. The Tribunal, for this purpose placed reliance on the Bombay High Court decision in the case of Empire Industries Ltd. vs. CIT (1992) 101 CTR (Bom) 257 : (1992) 193 ITR 295 (Bom). The Tribunal also accepted the contention of the assessee that the case was covered by decision of jurisdictional High Court in the case of Bardolia Textile Mills vs. ITO (1985) 45 CTR (Guj)(FB) 274 : (1985) 151 ITR 389 (Guj)(FB). At the same time, the Tribunal restored the matter to the AO for fresh consideration and to give necessary relief in light of the aforesaid decisions.

Heard Mr. Tanvish U. Bhatt, learned standing counsel for the applicant-Revenue, and Mr. M.J. Shah, learned advocate for the respondent.

In relation to question No. 1, if the question is read de hors the facts of the case then the same would become academic. As can be seen from provisions of s. 246(1)(f) of the Act it is apparent that any order under s. 154 of the Act which has the effect of enhancing the assessment or reducing refund or an order refusing to allow the claim made by the assessee is an appealable order before the AAC. Under s. 246(2)(a) by the process of incorporation the said provision viz. 246(1)(f) of the Act finds mention and hence, the same is also appealable before the CIT(A). Therefore, the question is required to be answered in the affirmative. However, in the facts of the present case the AO has merely titled the order as ‘Order giving effect to Tribunal’s order’. The said order has not been termed to be an order under s. 154 of the Act, but the CIT(A) has read the same as being an order under s. 154 of the Act. However, the CIT (A) has not non-suited the assessee on the said count. As noticed hereinbefore the CIT(A) has held that an order refusing to grant interest under s. 214 of the Act is not appealable.

The Tribunal has proceeded on the footing that even if it is an order under s. 154 of the Act it is an appealable order. It is settled position in law that an order giving effect to the appellate order bears the same characteristic as the original order against which appeal was filed viz. in this case, assessment order, and it is an accepted fact that the assessment order is an appealable order. An appeal is nothing else but continuation of the original proceedings and hence, an order passed to give effect to the findings of the appellate authority cannot be different in nature. Therefore also, the Tribunal was justified in holding that the order refusing to grant interest under s. 214 of the Act was an appealable order and the CIT(A) was not justified in not entertaining the appeal.

On merits of the controversy, the Tribunal has directed the AO to grant relief in accordance with the ratio of the decision of Full Bench of this High Court in the case of Bardolia Textile Mills (supra) and no infirmity can be found qua the said direction. In fact the learned counsel for the applicant-Revenue was not in a position to point out as to how the said direction was incorrect in any manner whatsoever.

In the result, both the question are answered in the affirmative i.e. in favour of the assessee and against the Revenue.

The reference stands disposed of accordingly, with no order as to costs.

[Citation : 282 ITR 595]

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