Interest under Section 220(2) - effective date for collection of interest on unpaid tax – whether it is from the date of demand notice following the first Assessment Order or from the date of demand notice pursuant to final Assessment Order? -

Facts In its order dated 17.10.2008 in ITA No.679/Vizag/2002, the ITAT, Visakhapatnam bench while allowing the appeal filed by the Revenue, set aside the order in ITA No.149/02-03, dated 18.07.2002 passed by the Commissioner of IT (Appeals), Guntur [for short “CIT(A)”] and held that in terms of Section 220(2) of the IT Act, the interest on unpaid tax is chargeable against the assessee from the original Assessment Order dated 25.03.1991 of the AO but not on the subsequent consequential order dated 28.03.1994 passed by him in the light of the order dated 23.01.1992 of Commissioner (Appeals).

Aggrieved, the assessee filed M.P. No.2/vizag/2009 seeking rectification of the order in ITA No.679 on the contention that the original assessment order dated 25.03.1991 was no more in vogue in view of the order dated 23.01.1992 passed in appeal by the CIT(A) and during the pendency of the appeal before the said authority, stay of collection of demanded tax was granted and therefore the assessee / appellant cannot be treated as “assessee in default” in respect of the demanded tax in terms of Section 220(6) of the IT Act, 1961.

 Divergent interpretations on the order dated 23.01.1992 passed by CIT(A) - 

Tribunal observed that if there is a default on the part of the assessee to comply with the original demand notice, the provisions of Taxation Laws (Continuation and Validation of Recovery Proceedings) Act, 1964 shall apply, meaning thereby, interest has to be payable from the original demand notice - 

HELD THAT:- In the light of the aforesaid divergent views, we have carefully gone through the order dated 23.01.1992 of CIT(A). No doubt in para-5 of the order the said authority mentioned as if it was necessary to set aside the assessment order. However, the said observation cannot be read in isolation.

On the other hand, when the entire order was read in conjunction, as rightly observed by the tribunal, the CIT(A) gave main thrust on the computation of capital gain and interest addition. In that view, it cannot be contended that the said authority wanted to expunge the entire assessment order dated 25.03.1991. In fact in the consequential order the Deputy Commissioner of IT arrived at an increased amount of Rs.62,94,117/- as against the original capital gains - Therefore it is not a case of setting aside of the entire assessment order.

The original assessment order dated 25.03.1991 and consequent demand notice, therefore stood valid. Since the petitioner did not pay the tax amount till 11.10.1996, in terms of the judgment in Vikrant Tyres Ltd’s case [2001 - SUPREME COURT] and Section 220(2) of the IT Act, the appellant /assessee is liable to pay interest from the date of original demand i.e., 25.03.1991. The order impugned does not suffer the vice of illegality or irregularity.

ANDHRA PRADESH HIGH COURT - A.S. KRISHNA AND COMPANY PRIVATE LIMITED, GUNTUR VERSUS DEPUTY COMMISSIONER OF INCOME TAX 2 [1] GUNTUR
No.- ITTA No. 138 of 2011