1. In this matter, the assessee who is represented by advocate Mr. Chimanlal T. Mody has chosen to remain absent. However, it is clear that the matter is concluded by the decision of the Full Bench of this High Court in CIT v. Daimler Benz : 108ITR961(Bom) .
2. A few facts may be stated as under : The assessee is M/s. P. Rajesh and Company, a registered firm which carries on business in art silk cloth on commission basis. As stated in paragraph 2 of the statement of the case, returns of income from the assessment years 1967-68 and 1968-69, which were due on or before June 30, 1967, and June 30, 1968, were filed late, namely on January 8, 1969, and June 30, 1969, respectively. There was a change in the constitution of the assessee-firm in the first period, but that is not very relevant for our purpose. For the late submission of returns, the ITO charged interest as provided under s. 139 of the I.T. Act. 1961.
3. Being aggrieved by his order, namely, the one for charging interest, the assessee went in appeal before the AAC. The AAC admitted the appeal. It was contended before the AAC that the assessee had sufficient cause to explain or justify the delay in filing the returns and if this cause has been properly appreciated, the ITO should have waived the levy of interest under rule 117A (v) of the I.T. Rules, 1962. The AAC in his order referred to s. 139(8) of the I.T. Act, 1961, and holding that the ITO had failed to consider the appellant's submissions, set aside the assessment as far as the levy of interest was concerned.
4. Being aggrieved by the order of the AAC, the Revenue came up in appeal before the Tribunal. It was urged before the Tribunal that having regard to the provisions concerning the assessee's right of appeal to the AAC, as detailed in s. 246 of the I.T. Act, 1961, the appeal against the order directing levy of interest was not competent. The Tribunal, however, rejected this contention and upheld the order of the AAC. It is from this order of the Tribunal that the reference was sought and made under s. 256(1) of the I.T. Act, 1961.
5. The Tribunal has referred the following question to us :
'Whether, on facts and in circumstances of the case, an appeal to the Appellate Assistant Commissioner against the levy of interest under section 139 of the Income-tax Act, 1961, is competent ?'
6. The question of appealability has been fully considered in CIT v. Daimler Benz : 108ITR961(Bom) and following the observations of Full Bench in the said decision, it will have to held that the appeal was not competent. This is because it was an appeal simpliciter from the order directing levy of interest. No further elaboration is require since the question has been fully considered in the aforesaid Full Bench decision.
7. In the result, the question referred to us is answered in the negative and in favour of the Revenue. Parties, however, to bear their own costs of the reference.