T.D. Sugla, J.

1. This is a reference at the instance of the assessee. It relates to the assessment year 1973-74. By its order under section 256(1) of the Income Tax Act, 1961, the Income Tax Appellate Tribunal has referred to this court the following question for law for the opinion of this court :

"Whether, on the facts and in the circumstances of the case, the appeal by the assessee to the Appellate Assistant Commissioner of Income Tax against the non-allowance of interest by the Income Tax Officer under section 214/244 of the Income Tax Act, 1961, in the order giving effect to the order of the Appellate Assistant Commissioner in the quantum appeal competent "

2. The assessee had, it is common ground, paid advance tax of Rs. 24,47,850. On regular assessment completed under section 143(3), the Income Tax Officer raised a demand under section 156 of the Act, of Rs. 7,27,401 inclusive of interest of Rs. 56,161. By an order dated June 27, 1974, the Appellate Assistant Commissioner allowed the appeal partly. While giving effect to the appellate order on August 29, 1974, the Income Tax Officer determined the amount refundable to the assessee at Rs. 9,46,137. The amount was refunded but interest thereon under section 214 of thewas not paid.

3. Aggrieved by the aforesaid order of refund passed by the Income Tax Officer, the assessee filed an appeal before the Appellate Assistant Commissioner and claimed that the Income Tax Officer ought to have granted interest under section 214 of the. The Appellate Assistant Commissioner treated the order of the Income Tax Officer giving effect to the order of the Appellate Assistant Commissioner as an order under section 154 of the. He held that non-payment of interest on the amount of refund had the effect of reducing the refund and that the appeal against non-payment of Interest was competent. As regards the basic question, the Appellate Assistant Commissioner observed that interest was payable by the assessee on the shortfall in the payment of advance tax under section 215. Interest was payable by the Department to the assessee under section 214 on the excess of advance tax paid over the tax payable determined on regular assessment. While there was a provision for modification of the amount of interest under section 215(3) on rectification, appeal or revision of assessment, there was no such provision in section 214. In the absence of a provision like sub-section (3) of section 215 in section 214 of the Act, the Appellate Assistant Commissioner held that the assessee was not entitled to interest under section 214 of theon the rectification of the assessment order in pursuance of the appellate order. Accordingly, the assessees appeal was dismissed.

4. The assessee went in further appeal to the Tribunal. By the impugned order dated January 23, 1976, the Tribunal held that an appeal merely against an order under section 18A of the Indian Income Tax Act, 1922, corresponding to section 215 of the Act, would not lie but, in an appeal against an order of assessment, it would be open to the assessee to challenge the Income Tax Officers order under section 18A of theas well. It also held that demanding interest from the Income Tax Officer under section 214 of thecould not be treated as a case of the assessee denying its liability to the assessed under the. The Tribunal thus held that the appeal filed by the assessee merely against non-payment of interest under section 214 was not competent. In that view of the matter, the Tribunal did not go into the merits of the question whether the assessee was or was not entitled to interest under section 214 of the.

5. By placing reliance on the Supreme Court decision in the case of Central Provinces Manganese Ore Co. Ltd. v. CIT : [1986]160ITR961(SC) , and the Full Bench decision of our court in the case of CIT v. Daimler Benz A. G. : [1977]108ITR961(Bom) , Mr. Dastur, learned counsel for the assessee, urged that the levy of interest is a part of the process of assessment and, therefore, it is open to an assessee to dispute the levy in the appeal provided he limits himself to the ground that he is not liable to the levy at all. Placing reliance on the decision of the Andhra Pradesh High Court in the case of Bakelite Hylam Ltd. v. CIT : [1988]171ITR344(AP) , Mr. Dastur pointed out that total denial of liability by the assessee under section 215 was equated by the Andhra Pradesh High Court to the total denial of liability on the part of the Revenue to pay interest on the amount of refund. It was held in that case that the assessee had a right of appeal against non-payment of interest under section 214 of the. Alternatively, Mr. Dastur submitted that non-payment of interest under section 214 of thewould also be appealable under clause (f) of sub-section (1) of section 246. For this purpose, he placed strong reliance on the Madhya Pradesh High Court decision in the case of CIT v. Perfect Pottery Co. Ltd. : [1988]173ITR545(MP) , wherein, in identical circumstances, an appeal against non-payment of interest under section 214 of thewas held competent. He pointed out that the Madhya Pradesh High Court, in that case, had followed our courts judgement in the case of CIT v. S. C. Shah : [1982]137ITR287(Bom) . Lastly, Mr. Dastur argued that the appeal would also be competent under clause (n) of sub-section (1) of section 246 which provides for appeal against an order under section 237 of the. Section 237 deals with the question of refund of excess amount of tax paid by the assessee. It was his case that, non-payment of interest on the amount of refund due, the assessee is aggrieved as the amount of refund of tax stands thereby reduced.

6. Dr. Balasubramanian, learned counsel for the Revenue, on the other hand, contended that the expression "denying liability" to be assessed under the used in section 246(1)(c) was, on the face of it, applicable to the assessees. It cannot be equated with the total denial of liability on the part of the Revenue to pay interest on the amount of refund as held by the Andhra Pradesh High Court. He admits that the charge or levy of interest could be a part of the process of assessment. It was to be considered whether the non-payment of interest could also be stated to be a part of process of levy of interest or assessment. As regards the alternate contention of Mr. Dastur, Dr. Balasubramanian stated that the Income Tax Officer had, admittedly, not described the order giving effect to the order of the Appellate Assistant Commissioner as an order under section 154 of the. The copy of the order is an annexure to the statement of the case which shows to the contrary. The Tribunal, he stated, has not given any finding on that question and the order giving effect to the appellate order could not possibly be an order contemplated under section 154 of the. It may be difficult to accept that such an order was and could be treated as an order under section 154. As regards the last contention, namely, that the appeal could be competent also under section 246(1)(n), Dr. Balasubramanian stated that this submission was, on the face of it, untenable. Section 237 deals with the question of refund of excess amount of tax. Tax and interest are different in concepts and are treated differently in the Income Tax Act under various clauses. It is, therefore, too good a proposition to say that the appeal against non-payment of interest under section 214 of thecould be treated as an appeal against an order under section 237 of the.

7. In reply, Mr. Dastur invited our attention to the Supreme Court decision in the case of CIT v. B. N. Bhattachargee : [1979]118ITR461(SC) . He placed particular emphasis on the observations in that case at page 476 to show that even the Supreme Court has held that, in appropriate cases, as a converse of the proposition, the Department can be equated with the assessee. In that case, the controversy was as regards the meaning and scope of the provisions of section 245M(7) under which, in the event of the Settlement Commission eventually not entertaining an application for settlement, the appeals withdrawn by the assessee would revive. There was no similar provision as regards the appeals withdrawn by the Department. A question arose to whether the Departmental appeals would also revive. The court held that what was applicable in the case of the assessee must also be applicable to the Department. According to Mr. Dastur, this judgement of the Supreme Court, at least indirectly, supports the view taken by the Andhra Pradesh High Court in Bakelite Hylam Ltd. v. CIT : [1988]171ITR344(AP) . Mr. Dastur, while fairly admitting that the right of appeal is to be found in the statute, submitted that a provision for appeal requires to be liberally construed. This has been, according to him, the view taken by different High Courts. Reference in this context was made to page 3, foot-note 13, of the latest edition of the learned commentators Kanga and Palkhivala in the Law and Practice of Income Tax, 8th Edition.

8. In our judgement, this reference can be answered by holding that the appeal of the assessee, on the facts and in the circumstances of the case, could be competent under section 246(1) (f) of the. We say so for more than one reason. In the first instance, there is no specific provision brought to our notice under which the Income Tax Officer is supposed to give effect to the order of the appellate authorities, i.e., the Appellate Assistant Commissioner or the Tribunal. By a judicial pronouncement, it can now be taken as settled law that what is done by the Income Tax Officer to give effect to the appellate orders results in an assessment under section 143 or 144, as the case may be. There is no reason why, in an appropriate case, such an order cannot also be treated as an order passed under section 154 of the. In the present case, the Appellate Assistant Commissioner has specifically so stated. The Tribunal, to say the least, has not disturbed that finding. Having regard to the principle of construction that the provision for appeal should be liberally construed, we would like to proceed on the basis that this is an order passed by the Income Tax Officer under section 154 of the. That being so, our courts judgement in the case of CIT v. S. C. Shah : [1982]137ITR287(Bom) , is squarely applicable and the question requires to be answered in favour of the assessee.

9. In the view we have taken about the competences of the appeal under section 246(1)(f), we do not think it necessary to examine and finally express our views on the other question, namely, whether the appeal will or will not also be competent under section 246(1)(c) or under section 0 or under sub-section (1) (n) of section 246 against the order under section 237 of the. The question is, accordingly, answered in the affirmative and in favour of the assessee.

10. No order as to costs.