Law:

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Section 246 read with sections 139 and 217 of the Income-tax Act, 1961 - Commissioner (Appeals) - Appealable orders - Assessment year 1965-66 - Whether an appeal lies to AAC from any order passed by ITO levying interest under sections 139 and 217 - Held, no FACTS The assessee's appeal against order charging interest under sections 139 and 217 were not considered by the AAC on the ground that no appeal lay against such an order. The Tribunal held that an appeal would be maintainable if the question of penal interest is also taken up along with the other grounds of appeal against the assessment itself. The Tribunal held that in the instant case the assessee challenged the charging of penal interest along with the other grounds of appeal against the assessment, and therefore, the appeal was maintainable. On reference : HELD Under clause (c) of section 246, an appeal lies against an order against the assessee, where the assessee denies his liability to be assessed under the Act. Under clause (m) an appeal lies against an order under section 216. But no provision is made in section 246 for any appeal against an order passed either under section 139 or under section 217. It is well settled law that an appeal is not a matter of right and right of appeal must be conferred by the statute concerned. If an appeal against the particular type of order is not provided for, an appeal does not lie and cannot be entertained against such an order. On this general principle, therefore, an order of penal interest under section 139 or of penal interest under section 217 is not appealable as such and no appeal would lie against any such order. Further, section 2(43) defines "tax" to mean income-tax chargeable under the provisions of the Act in relation to the assessment year commencing on the 1-4-1965, and any subsequent assessment year and in relation to any other assessment year income-tax and super-tax chargeable under the provisions of the Act of 1961, prior to 1-4-1965. It is in the light of this definition of the word "tax" occurring in section 2(43) that one has to consider the provisions of section 246. Even as regards the words "tax" and "assessment", it is clear and the…

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