ORDER
Sunil Kumar Yadav, Judicial Member.
These appeals are preferred by the assessee on various grounds. But, during the course of hearing, the assessee has opted not to argue on merit except the mode of computation of charging of interest under section 234A of the Income Tax Act.
2. We, therefore, restrict ourselves to an issue with regard to computation of interest under section 234A of the Income Tax Act and reject other grounds of the assessee raised on merit as no argument was advanced on behalf of the assessee in this regard. We, accordingly, dismiss the other grounds raised in these appeals and confirm the order of the Commissioner (Appeals) on merit finding no infirmity therein.
3. We have heard the rival submissions on the issue of charging of interest under section 234A of the Income Tax Act (hereinafter referred to as ‘Act’). The main dispute is with regard to the period for which interest under section 234A is to be charged. Whether it starts from the due date of filing of the return under section 139 of the Income Tax Act or from the date of notice issued under section 148 of the Income Tax Act ?
4. The learned counsel for the assessee has argued at the threshold that, up to the assessment year 1993-94 assessee was not required to file the return of income in view of the provisions of section 139(1A) of the Act, as the assessee derived only salary income and the TDS was deducted by the employer. When the assessee was not required to file the return of income, the interest under section 234A cannot be charged from the due date of filing of the return. At the most, it can only be charged from the day up to which assessee was required to file return of income pursuant to a notice under section 148 of the Income Tax Act. After the assessment year 1993-94, the learned counsel for the assessee did not raise much dispute and has candidly agreed that interest under section 234A can be charged only from the date of filing of the return, as the assessee was required to file return of income, though he derived the salaried income alone. In support of his contention, the learned counsel for the assessee has relied upon the order of the Tribunal SMC Bench in the case of Ms. Priti Pithawala v. ITO (IT Appeal No. 6382 (Mum.)of 2002) in which it has been held that the assessee cannot be forced to do a particular act which is not possible for him to do.
5. The learned Departmental Representative on the other hand has submitted that though the assessee was required to file the return of income, yet, he did not file it. The assessee even did not respond to the notices issued by the assessing officer under section 148 of the Income Tax Act and the assessing officer was constrained to frame the ex parte assessment under section 144 read with section 147 of the Income Tax Act for all the assessment years. The learned Departmental Representative further contended that before the Commissioner (Appeals) also, the assessee did not raise this argument and the Commissioner (Appeals) confirmed the interest charged under section 234A of the Income Tax Act. The learned Departmental Representative further submitted that charging of interest under section 234A is a mandatory and no discretion can be exercised to relax the provision of charging of interest on delay in filing the return of income. The learned Departmental Representative further invited our attention to the Explanation 3 to section 234A with the submissions that wherein assessment is made for the first time under section 147 of the Act, the assessment so, shall be regarded as a regular assessment for the purpose of this section. Meaning thereby, the interest is to be charged from the date immediately following the due date and ending on the date of completion of the assessment under section 144 of the Income Tax Act as per section 234A(1)(b) of the Income Tax Act. In support of this contention that the assessee is required to file the return of income even up to 1993-94, he invited our attention to the relevant provisions of section 139(1A), according to which, no person need furnish under sub-section (1), a return of his income if his income or as the case may be during the previous year consisted only of income chargeable under the head “Salaries” or of income chargeable under that head and also income of the nature referred to in any one or more clauses (I) to (IX) of sub-section (1) of section 80L, if the following conditions are fulfilled :
“One of the condition was that assessee’s income under the head ‘Salaries’ exclusive of the value of all benefits or amenities not provided by way of monetary payment, does not exceed Rs. 24,000.”
6. But, in the instant case, assessee admittedly received various allowances more than this amount, beside the salary. In these circumstances, the assessee cannot get the protection of this sub-section for not filing of the return. So, the assessee is required to file the return of income and if he did not file it, he cannot take the benefit of his own wrong by saying that after the expiry of period prescribed under section 139(4) it was impossible for him to file the return of income, as the law does not prevent the assessee from filing the return of income, though a different treatment may be given to return of income by the revenue authorities. The assessee intentionally did not file the return of income not only before the due date, but, also after the service of notices under section 148 of the Income Tax Act. Even during the course of hearing of this appeal, the assessee could not explain satisfactorily as to why he did not respond to the notices issued by the assessing officer under section 148 or 142(1) of the Income Tax Act. On account of non-cooperative attitude of the assessee with the department, he deserves no sympathy or any relaxation in charging of interest. Moreover, charging of interest under section 234A is mandatory and none of the authorities have jurisdiction to relax this provision.
7. Having heard the rival submissions and from careful perusal of the record, we find that the assessee did not file the return of income nor did he respond to the notices issued under sections 148 and 142(1) of the Income Tax Act and the assessing officer was constrained to frame an ex parte assessment under section 144 read with section 147 of the Income Tax Act. We have also pondered upon the arguments of the assessee that up to the assessment year 1993-94 the assessee was not required to file the return of income in view of the provisions of section 139(1A) of the Income Tax Act as he derived the income under the head “Salary” alone. But, we do not find force therein. Under section 139A certain category of salaried persons are exempted from filing of the return of income and not all assessee’s who derives income under the head “Salary” alone. In order to understand the impact of this provision, we reproduce the same as under which has been omitted by Finance Act, 1992 with effect from 1-4-1993.
“(IA) Notwithstanding anything contained in sub-section (1), no person need furnish under that sub-section a return of his income or the income of any other person in respect of whose total income he is assessable under this Act, if his income or, as the case may be, the income of such other person during the previous year consisted only of income chargeable under the head “Salaries” or of income chargeable under that head and also income of the nature referred to in any one or more of clauses (i) to (ix) of sub-section (1) of section 80L and the following conditions are fulfilled, namely:
(a) where he or such other person was employed during the previous year by a company, he or such other person was at no time during the previous year a director of the company or a beneficial owner of shares in the company (not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits) carrying not less than twenty per cent of the voting power;
(b) his income or the income of such other person under the head “Salaries”, exclusive of the value of all benefits or amenities not provided for by way of monetary payment, does not exceed twentyfour thousand rupees.
(c) The amount of income of the nature referred to in clauses (i) to (ix) of sub-section (1) of section 80L, if any does not, in the aggregate, exceed the maximum amount allowable as deduction in his case under that section; and
(d) the tax deductible at source under section 192 from the income chargeable under the head “Salaries” has been deducted from that income.”
8. From its careful perusal, it is, explicitly clear that only those assessees who derives the income under the head “Salary” alone are exempted from filing of the return of income subject to certain conditions. In the instant case, assessee admittedly derived various allowances, though it may be part of the salary, but, its quantum was much more than of Rs. 24,000. In these circumstances, it cannot be held that assessee was not required to file the return of income at the relevant point of time. We have also carefully examined the provisions of section 234A of the Income Tax Act and we find that, through Explanation 3 it had been made clarified that where assessment is made for the first time under section 147, the assessment so made shall be regarded as a regular assessment for the purpose of this section. Meaning thereby, the reassessments made in the instant cases are regular assessments for the purpose of charging of interest under section 234A of the Income Tax Act. The mode of computation of charging of interest is given under section 234A sub-section (1), according to which, where the return of income for any assessment year under sub-section (1) or sub-section (4) of section 139 or in response to notice under sub-section (1) of section 142 is furnished after the due date or is not furnished, the assessee shall be liable to pay simple interest at the rate of one and one-fourth per cent for every month or part of month comprising in the period commencing on the date immediately following the due date and :
(a) Where the return is furnished after the due date, ending on the date of furnishing of the return or;
(b) Where no return has been furnished, ending on the date of completion of the assessment under section 144;
On the amount of the tax on the total income as determined on regular assessment as reduced by advance tax if any paid and any tax deducted at source.
9. In the instant case, undisputedly assessee did not file the return of income under section 139(1) nor under section 139(4) of the Act. Even the notices issued under sections 148 and 142(1) were not responded by the assessee by filing the return of income. The assessing officer, thereafter was constrained to frame the assessment under section 144 of the Income Tax Act. Therefore, the assessee’s case falls within the category of section 139(1)(b) of the Act, according to which (sic), the interest is to be charged from the date, following the due date of filing of the return under section 139(1) and ends on the date of completion of the assessment. The assessing officer has charged the interest in this manner as admitted by the parties. Therefore, we do not find any infirmity in the mode of computation adopted by the assessing officer. We, therefore, confirm the order of the Commissioner (Appeals) in this regard. Accordingly, the appeals of the assessee are dismissed.
In the result, all the appeals of the assessee are dismissed.