Commissioner of Income Tax vs Babcock and Wilcox of (I.) Ltd.

Dipak Kumar Sen, J. 1. It is on record that an order of rectification passed by the Income Tax Officer u/s 154 of the Income Tax Act, 1961, was cancelled by the Commissioner of Income Tax (Appeals). The order of the Commissioner of Income Tax (Appeals) was sustained by the Tribunal on further appeal by the Revenue. Under the order of rectification, the Income Tax Officer had added interest u/s 139(8) in computing the total tax. The assessee had also preferred an appeal before the Commissioner (Appeals) against the levy of interest.

The assessee preferred a cross-objection before the Income Tax Appellate Tribunal contending, inter alia, that the assessee''s grievance against charging of interest u/s 139(8) of the Income Tax Act, 1961, had not been dealt with by the Commissioner (Appeals). The Tribunal allowed the appeal of the assessee for statistical purposes and restored the matter to the Commissioner (Appeals) on a limited issue directing the Commissioner to deal with the grievance of the assessee against charging of interest.

In this application u/s 256(2) of the Income Tax Act, 1961, the Commissioner of Income Tax, West Bengal-I, seeks a direction from this court to the Tribunal to refer the following question as a question of law arising out of its order for the opinion of this court:

"Whether the Tribunal was justified in directing the Commissioner of Income Tax (Appeals) to decide on a ground of appeal relating to the charging of interest u/s 139(8) of the Income Tax Act, which did not arise out of the order u/s 154 passed by the Income Tax Officer ?"

In our view, the question has become academic inasmuch as the entire order of rectification has been cancelled by the Commissioner of Income Tax (Appeals), which was subsequently sustained by the Tribunal. Necessarily, the interest which was included in the total tax under the order of rectification cannot now stand.

The grounds of appeal relating to the charging of interest was valid as the order u/s 154 specifically provided for payment of such interest In any event, the entire order having been cancelled, the matter has now become of academic interest. We agree with the order of the Tribunal rejecting the appeal of the Revenue u/s 256(2) of the Income Tax Act, 1961.

This application is dismissed. There will be no order as to costs.

Monjula Bose , J. 7. I agree.