JUDGMENT
Srinivasan, J.
1. The petitioner is an assessee on the file of the second respondent in respect of the asst. yr. 1977-78. For the accounting period ending with 31st March, 1977, the petitioner ought to have filed a return under S. 139(1) of the IT Act, 1961 (hereinafter referred to as “the Act”), on or before 31st July, 1977. The petitioner did not do so. But, later, on 29th Sept., 1977, the petitioner filed Form No. 6, seeking extension till 31st Oct., 1977. The reasons given by it are that the accounts had just been audited and finalised; annual general meeting was to be held on 29th Sept., 1977, statements were under computation and the return form was to be sent. Time was extended till 31st Oct., 1977. But the return was not filed. On 28th Oct., 1977, the petitioner requested further extension till 30th Nov., 1977, for the purpose of collecting details for the computation of the income. That was granted. But, even then, the petitioner did not file the return in time. Without getting any further extension, the petitioner filed the return on 12th Dec., 1977, on the basis of which an assessment order was passed by the second respondent on 4th Sept., 1980. A sum of Rs. 7,636 was levied as interest under S. 139(8) of the Act. On 4th Nov., 1980, the assessment order was rectified for some mistakes. Interest was reduced to Rs. 6,480. Thereafter, notice was issued on 12th Nov., 1980, by the second respondent under S. 154 of the Act of enhance the interest to Rs. 44,160 on the ground that in the calculation of interest payable, tax paid under S. 140A of the Act was wrongly taken into account. The petitioner sent a reply to notice on 18th Nov., 1980. The petitioner gave the following reasons for the delay in filing the return :
“(a) the annual general meeting of the company for adopting the accounts for the year ended 31st March, 1977, was held only on 29th Sept., 1977;
(b) the petitioner had applied for time up to 30th Nov., 1977, for submitting the return of income;
(c) the petitioner had been provided with the return form by the office of the second respondent on 21st Nov., 1977; and
(d) after gathering all the relevant particulars, the petitioner was able to file the return on 12th Dec., 1977.”
On that footing, the petitioner objected to the levy of interest under S. 139(8) of the Act. Even at this stage, it should be pointed out that none of the reasons given by the petitioner in the said objections can amount to sufficient cause, as contemplated by the Act.
2. The objections raised by the petitioner were overruled by order dt. 25th Nov., 1980, passed by the second respondent. He proceeded to pass the order for rectification confirming the proposal to enhance the interest to Rs. 44,160. That order was not challenged by the petitioner.
However, the appeal filed by the petitioner against the original order of assessment dt. 4th Sept., 1980, was disposed of on 24th July, 1981. The challenge of the petitioner to the levy of interest under the assessment order was rejected. The petitioner filed an appeal to the Tribunal, but it did not challenge the levy of interest before the Tribunal.
3. The petitioner sent a communication on 17th Jan., 1983, for waiver of the interest charged under S. 139(8) of the Act. In paragraph 2, it is stated as follows :
“We request you to kindly waive the same in view of the valid reasons stated in our letter dt. 18th Nov., 1980 for the delay in furnishing our return of income for the asst. yr. 1977-78.”
Thus, by the said letter dt. 17th Jan., 1983, the petitioner had only reiterated what he has stated in the reply letter dt. 18th Nov., 1980, which was already rejected by the second respondent, by order dt. 25th Nov., 1980. The second respondent passed another order on 28th Sept., 1983, rejecting the request for waiver of interest. The relevant part of the said order reads as follows :
“I find that in the order dt. 25th Nov., 1980, the ITO has considered the chargeability of interest under S. 139(8) with reference to your explanation for the delay in filing the return and has specifically held the reasonableness of the delay in filing the return is irrelevant in so far as the provisions of S. 139(8) are concerned and he had, therefore, overruled your objection.
Since the matter has already been considered by the ITO and interest charged, the question of reviewing the matter and reducing or waiving the interest under S. 139(8) does not arise.”
4. That order was challenged by the petitioner by a revision before the CIT, the first respondent herein. The CIT dismissed the revision by order dt. 9th July, 1984, on two grounds :
(i) The application under S. 264 has been delayed as it ought to have been filed within one year from the date of service of the order dt. 25th Nov., 1980, and no reasons are given for the delay in the submission of the application. Hence, the application is not maintainable;
(ii) The assessee had gone in appeal against the assessment order of the ITO and one of the grounds raised in the appeal was against the charging of interest. The appeal was decided against the assessee and in the appeal before the Tribunal, no issue has been raised regarding interest. Hence, the revision application under S. 264 is not maintainable.
5. It is the said order which is challenged in this writ petition by the petitioner herein. Learned counsel for the petitioner contends that the first respondent is in error in holding that his revision application was barred by limitation and that the petitioner ought to have filed the application within one year from the date of service of the order dt. 25th Nov., 1980. It is argued by learned counsel that the present revision application is against the order dt. 28th Sept., 1983, passed by the ITO rejecting the request for waiver of interest under r. 117A of the IT Rules and that revision petition is well within time and not barred by limitation. There is no merit in this contention. As pointed out already, the question whether the petitioner had sufficient cause for the delay in filing the return was considered at the instance of the petitioner at the time when the order of rectification was passed under S. 154 of the Act by the second respondent on 25th Nov., 1980. The petitioner could have invited the second respondent to consider that question at that time, by virtue of the proviso to S. 139(8)(a) of the Act. Under that proviso, the AO may, in such cases and under such circumstances as may be prescribed, reduce or waive the interest payable by any assessee under that sub-section. The circumstances contemplated in the proviso are prescribed by r. 117A. The Rules are framed under S. 295 of the Act, which provides that the Board may make rules for carrying out the purposes of the Act. When the proviso to the section contemplates prescription of circumstances under which the proviso can be invoked, r. 117A has been framed, prescribing the said circumstances. Five circumstances have been prescribed in the rule. It is not necessary for the purpose of this order to set them out in detail. The fifth circumstance is where the assessee produces evidence to the satisfaction of the AO that he was prevented by sufficient cause from furnishing the return within time. Admittedly, this case does not fall under the other four circumstances. The only circumstance, which could be invoked and has been invoked by the petitioner is the fifth circumstance under which he has to satisfy the AO that he was prevented by sufficient cause from furnishing the return within time. When this question was raised by the petitioner itself before the ITO at the time when the order was sought to be made under S. 154 rectifying the mistake contained in the order of assessment made under S. 139(8), that officer considered the same and rejected the case of the petitioner. In such cases, there is no question of the petitioner being allowed to raise the same point for the second time under r. 117A independently. The rule cannot be read independent of the section. In fact, the first part of r. 117A reads thus.
“In respect of the assessment relating to an assessment year commencing on or before the first day of April, 1988, the AO may reduce or waive the interest payable under S. 139 in the cases and in the circumstances mentioned below, namely :”
It may be noted that the rule refers not only to S. 139 of the Act, but also uses the expression “circumstances”.
If the petitioner had not raised the objection at the time when the order of rectification was made, it might have been open to the petitioner to fie a separate application under r. 117A, invoking the fifth circumstances. But when the petitioner had invoked that provision and contended before the officer that interest was not leviable because it had sufficient cause for the delay in filing the return and when that reason had been rejected by the officer, it is not open to the petitioner to file a separate application under r. 117A. Consequently, the revision, which is filed before the CIT, though it purports to be against the order dt. 28th Sept., 1983, is really and in effect only against the order dt. 25th Nov., 1980, which levied interest after rejecting the contention of the petitioner that it had sufficient cause for the delay in filing the return. The order dt. 28th Sept., 1983, is nothing but merely pointing out to the petitioner that an order had already been passed on 25th Nov., 1980, and there is no question of reconsidering the subject-matter, at the instance of the petitioner. Hence, the CIT is justified in taking the view that the present revision before him is one against the order dt. 25th Nov., 1980, and that is beyond the period prescribed by law and, therefore, it is barred by limitation.
6. The second reason given by the CIT is also correct in the circumstances of the case. The petitioner, having challenged the levy of interest by an appeal before the appellate authority and failed therein, cannot contend that the interest should be waived under r. 117A of the Rules. It is to be noted that the petitioner did not raise any ground before the Tribunal, when it filed an appeal before the Tribunal with regard to levy of interest.
7. In the circumstances, the order of the CIT, which is impugned in this writ petition does not suffer from any infirmity whatever. Hence, this writ petition is dismissed. No costs.