The Commissioner Of Income Tax, Patiala v. H.p. State Small Industries And Export Corporation Limited

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. ITR No.2/1997 Decided on.22.4.2008 The Commissioner of Income Tax, Patiala …Appellant. Versus H.P. State Small Industries and Export Corporation Limited. …Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?[1]. No. For the appellant : Ms Vandana Kuthiala, Advocate. For the respondent : Mr. Dushyant Dadwal, Advocate. Deepak Gupta, J. (oral): The following question of law has been referred for the opinion of this Court under section 256 of the Income Tax Act, 1961: “Whether on the facts and in the circumstances of the case, the ITAT was right in law in holding that there is no specific provision for charging interest u/ss 139 (8) and 217 on carrying out rectification?” Sub section (2) of section 217 of the Income Tax Act, 1961 provides that the provisions of sub- sections (2) (3) and (4) of section 215 in relation to interest shall be applicable to proceedings under 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. section 217 also. To form a proper opinion on the question referred to us it would be necessary to quote the provisions of sections 139 (8) (b) and 215 (3), as they stood prior to the amendment made w.e.f. 1.4.1985 and thereafter. The provisions read thus: From a plain reading of the provisions of sections 139 (8) and 215 (3), as they stood prior to the amendment made on April 1, 1985, it is clear that as a result of an order under section 155 of the Act and other sections mentioned in those provisions, if the amount of tax is reduced and interest had been charged earlier, the same shall be reduced accordingly and the excess amount is to be refunded. At that time, there was no provision that in case tax liability of the assessee is enhanced, the interest would be enhanced accordingly. This provision was brought in by an amendment made with effect from April 1, 1985, and the liability of interest was to be increased in the event of increase or reduction in the tax liability. We have seen the Amendment Act and its objects and reasons. It does not show that it was made retrospective so as to be made applicable even for the assessment year 1974-75 with which we are concerned in this case. In the present case the assessment year is 1982-83 i.e. prior to the amendment which came into effect on 1.4.1985. It is, therefore, obvious that the income Tax Officer had no authority to impose interest on the amount of income increased of rectification. This view has also been taken by the Punjab and Haryana High Court in Panna Lal versus Commissioner of Income Tax, (1989) 179 ITR 16 and the Gujarat high Court in Commissioner of Income Tax versus Vishwajit M. Mehta, (2002) 254 ITR 66. The question is, therefore, answered in favour of the assessee and against the revenue. A copy of this judgment under the signature of the Registrar General of this Court be forwarded to the Tribunal. The reference thus stands disposed of with no order as to costs. (Deepak Gupta), Judge ( Rajiv Sharma), Judge