CIT vs Samurai Software (P) Ltd.

Heard on the question of admission.

This appeal has been preferred against the decision rendered by the Tribunal on 22-1-2010. The Tribunal has held that since the order of assessment was set aside in appeal, interest could not be levied u/s 220(2) and in such a situation, demand is required to be raised afresh thereafter interest has to be paid. The Tribunal has relied upon the judgment in Vikrant Tyres Ltd. Vs. First Income Tax Officer, and the decision of Full Bench of Andhra Pradesh High Court in case of SMS Schloemann Siemag, A.G. Vs. Dy. Commissioner of Income Tax and Another, and decision of the High Court of Kerala in case of Smt. B. Indira Rani Vs. Commissioner of Income Tax and Others, .

Ms. Parinitoo Jain, advocate has submitted that once a demand was raised it was incumbent upon the Assessee to deposit the amount. The section does not envisage fresh demand to be raised.

We have no hesitation to reject the aforesaid submission made by learned Counsel for the Appellant in view of the decision rendered by the Apex Court in Vikrant Tyres Ltd. v. ITO (supra) in which the Apex Court has held while considering the provisions of Sections 156 and 220 of the Income Tax Act, 1961 that once a refund has been made pursuant to the appellate order and, thereafter, assessment order has been affirmed again, fresh demand was to be raised, original demand does not survive. In the instant case also, the order of assessment was set aside. Only the fact that amount was not deposited initially would not change the effect of setting aside the order of assessment by the Commissioner (Appeals) in the appeal. Once the order has been affirmed, again a demand is required to be raised, which is the opinion expressed by Full Bench of Andhra Pradesh High Court and also by Kerala High Court. The Tribunal has considered the said aspect of the matter in the impugned order, which reads as under:

We also find substance in the arguments of the learned Authorised Representative regarding levy of interest u/s 220(2) of the Act on its merits because no interest u/s 220 can be levied during the period for which there was no demand till it gets revived. In this regard, we find support from the decision of Hon'ble Supreme Court in case of Vikrant Tyres Ltd. v. ITO (supra) relied upon by the learned Authorized Representative wherein it was held that condition precedent u/s 220 was that there should be a demand notice and there should be a default in paying the amount so demanded within the stipulated time in the notice. The Full Bench of Hon'ble Andhra Pradesh High Court in case of SMS Schlomann Siemag v. Dy. CIT (supra) was pleased to hold that interest u/s 220(2) could not be charged from the date of original demand notice wherein appeal from the assessment order was allowed with refund with interest but the order of Commissioner (Appeals) was set aside by the Tribunal, thus original demand notice did not survive. Similar view has been expressed by the Hon'ble Kerala High Court in case of Smt. B. Indira Rani v. CIT (supra) holding that interest u/s 220(2) is payable from fresh order. We are thus of the view that the assessing officer was not justified in charging interest u/s 220(2) of the Act.

In view of the aforesaid reasons, we are not inclined to accept the submission raised by the counsel for the Appellant.

Accordingly, this appeal being devoid of merits deserves dismissal and the same is hereby dismissed in limine.