This is appeal by assessee, challenging order of Commissioner (Appeals) by which he has sustained order of ITO passed under section 154 of Income-tax Act, 1961 (' Act '). 2. Briefly speaking, ITO in his order noted that action under section 154 was initiated as charging of interest, through oversight while giving effect to order of Commissioner (Appeals), was not made. He pointed out that interest under section 139(8) of Act was duly charged in regular assessment made under section 143(3) of Act. He inferred that non-charging of interest in his order passed under section 251 of Act was mistake apparent from record. assessee complied with notice and contended in written submission dated 10-1-1983 that as assessment resulted in refund, no interest was to be charged. It was also claimed that in case of registered firm, charging of interest under section 139(8), treating it as unregistered firm, is debatable and highly controversial, relying on decisions of different High Courts. 3. ITO did not accept submissions made on behalf of assessee. He pointed out that interest was duly charged while making assessment originally under section 143(3) and there was no objection on part of assessee in so charging of interest. He mentioned that law is specific with regard to charging of interest in case of registered firm. He pointed out that tax, for purpose of charging interest under section 139(8), is to be calculated as that of unregistered firm. He pointed out that in present case, tax as unregistered firm, after setting off tax deducted at source, advance tax, being more, interest under section 139(8), has to be charged. He, therefore, concluded that interest was clearly chargeable amounting to Rs. 3,199. 4. assessee took up matter before Commissioner (Appeals) stating that there was delay of 7 months in filing of return. It was, however, pointed out to Commissioner (Appeals) that charging of interest under section 139(8), treating registered firm as unregistered one, was debatable issue. Reference was made to decisions in cases of Addl. CIT v. Mahadeshwara Lorry Service [1980] 4 TAXMAN 481 (Kar.) (DB), Chhotalal & Co. v. ITO [1976] 105 ITR 230 (Guj.), Jiwanmal Hospital v. ITO [1979] 119 ITR 439 (MP) and Hindustan Steel Forgings v. CIT [1980] 121 ITR 793 (Punj. & Har.). It was pleaded before Commissioner (Appeals) that provision for levying interest on registered firm in status of unregistered firm being unconstitutional was struck down by different High Courts. It was also pleaded that in view of this controversy and that point involved was debatable, action under section 154 would not lie, relying on decision of Hon'ble Supreme Court in case of T.S. Balaram, ITO v. Volkart Bros. [1971] 82 ITR 50. 5. It was also pleaded that in case where tax was not payable in terms of regular assessment, as registered firm, penalty under section 271(1)(a) of Act should not be levied as held by Madras High Court in case of CIT v. Fomra Bros. [1980] 122 ITR 312. It was also contended that revision order dated 26-3-1982 passed by ITO under sections 251/143(3), did not incorporate order levying interest under section 139(8) and, consequently, interest could not be levied later on under section 154, as there was no order as mentioned by ITO to that effect, relying on decision of Hon'ble Calcutta High Court in case of Monohar Gidwany v. CIT [1983] 139 ITR 498. assessee also contended that net tax payable by registered firm would be reduced to nil after giving effect to appellate order and after taking into account advance tax paid. It was pointed out that in fact, sum of Rs. 19,976 stood refundable to assessee as result of order of ITO under section 251. It was, therefore, submitted that interest levied by ITO was wrong. 6. Commissioner (Appeals) considered order of ITO and contentions made by assessee. He took into account decisions cited before him. He noted that there was another decision as rendered by Hon'ble Karnataka High Court in case of Mahadeshwara Lorry Service in which it was held that this provision was discriminatory in nature. Commissioner (Appeals) observed that in abovementioned case, as in cases of other decisions cited on behalf of assessee, decision related to provision incorporated in sub-clause (a) of clause (iii) of proviso to sub-section (1) of section 139, as it stood before it was amended by Taxation Laws (Amendment) Act, 1970. According to him, provision of section 139(8) was clearly mandatory and there was no scope for any discretion on part of ITO. He was also of opinion that Explanation 2 to section 139(8) clearly stipulates and enjoins on ITO that where assessee is registered firm or unregistered firm which has been assessed under clause (b) of section 183 of Act, tax payable on total income shall be amount of tax which would have been payable if firm had been assessed as unregistered firm. Commissioner (Appeals) was of view that decisions relied on by assessee related to law and provisions as they stood at relevant time. He also expressed view that income-tax authorities and Tribunal have no jurisdiction on legality or constitutionality of provisions of Act. He referred to case laws as reported in K.S. Venkataraman & Co. (P.) Ltd. v. State of Madras [1966] 60 ITR 112 (SC), Beharilal Shyamsunder v. Sales Tax Officer [1966] 60 ITR 260 (SC) and C. T. Senthilnathan Chettiar v. State of Madras [1968] 67 ITR 102 (SC) at p. 105. He was also of view that on facts of case, assessee wrongly placed reliance on decision in case of Volkart Bros. 7. He noted finding of ITO in assessment order to effect that interest under section 139(8) was levied and order to that effect was incorporated in last paragraph of assessment order. He pointed out that in his order giving effect to appellate order under section 251, ITO failed to charge interest and did not incorporate his direction to that effect. Commissioner (Appeals) was of view that it was, therefore, not intention of ITO not to charge interest and it was clearly case of oversight. He, therefore, did not agree with assessee on this point and was of opinion that decision in case of Monohar Gidwany would not be applicable to facts of case. 8. Commissioner (Appeals) took into account contention of assessee that net tax payable would be nil after giving effect to first appellate order and after adjusting advance tax, etc. He pointed out that tax determined to be payable in consequence of revision, order under section 251, was to tune of Rs. 32,948. assessee paid advance tax of section 251, was to tune of Rs. 32,948. assessee paid advance tax of R s . 52,900 and tax deducted at source was of order of Rs. 24. He mentioned that net sum of Rs. 19,976 was stated to be refundable to assessee. Accordingly, he expressed opinion that in circumstances, net demand payable, on basis of which interest could be charged under section 139(8), would appear to be negative figure. He referred to decision in case of Fomra Bros. He, however, pointed out that in that Madras High Court's decision, there was no occasion to consider special provision incorporated in Explanation 2 to section 139(8) as indicated above. He was of opinion that in present case, ITO had no choice but to clearly follow statutory provision of above section. He, therefore, declined to interfere with order of ITO. Hence, this appeal by assessee. 9. It is submitted on behalf of assessee that Commissioner (Appeals) misdirected himself in not taking into account point that charging of interest under section 139(8), treating registered firm as unregistered one, has been held to be unconstitutional and was struck down by different High Courts, on plea that tax authorities could not question such validity of any provision of Act. It is also appeal of assessee that Commissioner (Appeals) erred in not appreciating fact that accepting decision of High Court and acting in accordance with same, did not amount to questioning vires or constitutional validity of provisions of Act. It is also appeal of assessee that Commissioner (Appeals) erred in upholding charging of interest by ITO under section 154, when there was no tax payable by assessee. It is submitted by assessee's learned counsel that on facts of case, Commissioner (Appeals) should have cancelled order passed by ITO under section 154 as there was no mistake apparent from record. It is argued that at any rate, charging of interest as mentioned, being highly debatable issue involving arguments, Commissioner (Appeals) erred in upholding legal validity of order under section 154. It is also submitted that ITO did not charge interest under section 139(8) while giving effect to appellate order in quantum appeal and, therefore, ITO was not legally entitled to charge interest by taking resort to section 154. It is urged that on facts of case, appeal of assessee may be allowed and orders of authorities below may be cancelled. Reference is made to following case laws as to support case of assessee: Mohanlal Soni v. Union of India [1983] 143 ITR 436 (Cal.), Mahadeshwara Lorry Service's case, Chemmeens v. ITO [1984] 149 ITR 233 (Ker.), Volkart Bros' case and Monohar Gidwany's case. 10. It is also submitted by assessee's learned counsel that Special Bench of Tribunal, Jaipur, has decided point in similar circumstances in favour of assessee in case of ITO v. Lachmandas Raghunath Das Parihar [1983] 6 ITD 474. It is, therefore, submitted that in view of decisions o f different authorities cited on behalf of assessee, order of Commissioner (Appeals) cannot be sustained. 11. learned departmental representative supports orders of authorities below, contending that in original assessment made under section 143(3), ITO did charge interest under section 139(8) and necessary direction for same was given in order itself. It is also submitted that assessee did not challenge validity of interest under section 139 in its appeal before first appellate authority relating to quantum, as in fact, appeal was against levy of interest only under sections 217 and 218 of Act. It is argued that that position indicates that assessee, right from beginning, accepted levy of interest under section 139(8). It is submitted that it is not correct for assessee to say that ITO took recourse to section 154, as result of audit objection. According to learned departmental representative, there was no objection from audit as such, as record would show that calculation was checked by audit and no objection was pointed out. It is submitted that ITO himself suo motu initiated proceedings under section 154, particularly when interest was charged when passing assessment order originally under section 143(3), which was also found by Commissioner (Appeals) to be due to oversight, when ITO did not charge interest under section 139(8), while giving effect to order of first appellate authority in quantum appeal. 12. It is also submitted on behalf of revenue that assessee being treated as unregistered firm in present context, has not agitated earlier before appellate authority. According to learned departmental representative, it is wrong to contend that two views were possible, as in fact, there is only one view, in present facts of case. It is pointed out that in Lachmandas Raghunath Das Parihar's case, Special Bench of Tribunal, Jaipur, dealt with completely different situation, in which interest under section 139(8) was not charged originally while passing order of assessment under section 143(3) and, therefore, that decision would have no application to facts of case before us. In short, it is urged that appeal of assessee having no merit or substance may be rejected. 13. We have heard both sides at length and we have gone through orders of authorities below for our consideration. We have also perused assessee's written submission made before ITO against action proposed to be taken by ITO under section 154. 14. It has been pointed out before us on behalf of revenue that ITO levied interest under section 139(8) in his original order passed under section 143(3), but while giving effect to order of first appellate authority under section 251, ITO did not charge such interest. In this connection, it may be not out of place to refer to decision of Hon'ble Calcutta High Court in case of Chloride India Ltd. v. CIT [1977] 106 ITR 38 in which on facts of that case it was held, inter alia, that order made by ITO to give effect to order of AAC is order of assessment under section 143(3). Although background of case of Chloride India Ltd. was different, ratio enunciated by Hon'ble High Court is quite clear. If that is position, then, in our view, it is not correct to contend that since ITO did not charge interest or gave direction to that effect in his order under section 251 giving effect to appellate order, ITO cannot order levy of interest by resorting to section 154, particularly when ITO did levy interest under section 139(8) in his order of assessment under section 143(3). 15. assessee's claim is also that point at issue is highly debatable as different High Courts have held that provision treating registered firm as unregistered one for purpose of charging interest under section 139(8) being unconstitutional, action under section 154 cannot be taken. In this connection, it may be useful to refer to another decision of Hon'ble Calcutta High Court in case of CIT v. Priya Gopal Bishoyee [1981] 127 ITR 778 in which, on facts of case, it was held that payment of assessed tax on basis of registered firm would not exonerate assessee from imposition of penalty under section 271(1)(a) on basis that it was unregistered firm. Of course, in case of Priya Gopal Bishoyee, decision was given with reference to provisions of section 271(1)(a). 16. Commissioner (Appeals) in impugned order has narrated stand taken by assessee and his finding that there are other decisions also. stand taken by assessee before us is, therefore, that when two views r e possible and issue being highly debatable, action under section 154 cannot be resorted to. It is pertinent at this stage to refer to another decision of Hon'ble Calcutta High Court in case of V.R. Sonti v. CIT [1979] 117 ITR 838 in which it was, inter alia, held that income-tax authorities as well as appellate authorities, when dealing with rectification matters, should not look only at decisions of particular High Court under whose advisory jurisdiction it acts in order to find out whether that High Court has taken different views on question of law before it. They must consider decisions of all High Courts and if there is divergence of judicial opinion on question of law or two conceivable opinions are possible on it, they must hold that mistake is not apparent from record. In other words, when different High Courts have expressed different judicial opinions, action under section 154 would not be warranted by ITO or by appellate authorities under Act. It was also held in that case that as Hon'ble Supreme Court has decided that goodwill is capital asset of business, it cannot be contended that there is any longer divergence of judicial opinion on point. This is view taken by Hon'ble High Court. Accordingly, in present case before us, we have to refer to decision of Hon'ble Supreme Court in case of Jain Bros. v. Union of India [1970] 77 ITR 107 in which similar issue in identical background had arisen. In that case, challenge to section 297(2)(g) of Act was made on ground of contravention of article 14 of Constitution of India. It was noted that according to that provision, when person liable to penalty is registered firm then, notwithstanding anything contained in other provisions of Act, penalty imposable shall be same amount as would be imposable on that firm, if that firm were unregistered firm. It was decided on facts of that case that if firm got itself registered, partners were entitled to certain benefits and advantages and that it was, however, open to Legislature to say that once registered firm committed default attracting penalty, it should be deemed or considered to be unregistered firm for purpose of its imposition and no question of discrimination under article 14 would arise in such situation. Of course, decision in case of Jain Bros. was given on different context, which related to imposition of penalty under section 271. But ratio, in our opinion, is equally applicable to charging of interest under section 139(8) in case of registered firm, which could be treated as unregistered firm as per Explanation 2 referred to earlier. Having regard to decision in case of Jain Bros., it cannot be said that there is still divergence of judicial opinion on that question, as opined by Hon'ble High Court in case of V.R. Sonti. 17. Commissioner (Appeals) took into account decision of Hon'ble Calcutta High Court in case of Monohar Gidwany. It was noted in that case that unless order of assessment itself incorporated order for payment of interest, assessee cannot be asked, by means of simple demand notice, to pay penal interest under section 139 or under section 217. facts of present case before us, as stated earlier, are that ITO incorporated order for payment of interest in assessment order itself made under section 143(3). In another context, in case of Sundardas Thackersay & Bros. v. CIT [1984] 147 ITR 524 Hon'ble Calcutta High Court sustained action under section 154 made by ITO in charging interest from assessee-firm, treating assessee as unregistered firm. Of course, in that case, assessee did not object to rectification made under section 154, but challenge was made on basis that no notice was issued by ITO before rectification was made. 18. Commissioner (Appeals), in our opinion, has correctly pointed out that in case of Fomra Bros., Hon'ble Madras High Court did not deal with special provision of Explanation 2 to section 139(8), which is presently involved. 19. Hon'ble Calcutta High Court in case of Indian Aluminium Co. Ltd. v. CIT [1983] 141 ITR 258 has held that in order to determine whether section 154 is attracted to facts and circumstances of case, it has to be found out whether there was any mistake at all, and that apart, whether such mistake was apparent from record, and debatable point of law is not mistake apparent from record. In present case before us, it is seen that ITO levied interest under section 139(8) in his original assessment order made under section 143(3), which he omitted to direct while giving effect to order of appellate authority under section 251. In our opinion, non-charging o f interest while giving effect to appellate order on facts of present case, was mistake and this mistake was very much apparent from record as discussed by us above, keeping in view ratio in case of Chloride India. We consider that it is necessary also to refer to another decision of Hon'ble Supreme Court in case of Maharana Mills (P.) Ltd. v. ITO [1959] 36 ITR 350 in which field covered by section 35 of Indian Income-tax Act, 1922 was considered and reviewed, which is corresponding to section 154 of 1961 Act. It was held in that case that record contemplated by section 35 did not mean only order of assessment but all proceedings on which assessment order is based and ITO is entitled for purpose of exercising his jurisdiction under section 35 to look into whole evidence and law applicable to ascertain whether there was any error. Thus, we cannot agree with contention made on behalf of assessee that since ITO did not levy interest under section 139(8) in his order under section 251, giving effect to appellate order, action under section 154 cannot be taken, in view of decisions of appellate authorities and in view of fact that in original assessment order, interest was directed to be levied and was actually charged, which was not agitated by assessee before any appellate authority in quantum appeal. 20. At time of hearing, reference was made to another decision of Hon'ble Calcutta High Court in case of Mohanlal Soni in which it was held that levy of interest under section 139, treating registered firm as unregistered firm, is not discriminatory and does not offend article 14. It may also be mentioned that as contended before Commissioner (Appeals), it has also been contended before us now that after giving effect to appellate order and after adjusting advance tax paid, etc., net tax payable by assessee as registered firm would be nil and, therefore, there would be no interest chargeable under section 139. In this context, it is necessary to refer again to decision in case of Priya Gopal Bishoyee, in which it was noted that on date of imposition of penalty there would be no assessed tax within meaning of Explanation to sub-clause (b) (sic) of section 271(1)(a), if it was registered firm. It was pointed out that if assessee was unregistered firm, in view of above provision, then assessed tax must be calculated on that basis. Thus, contention of assessee in this respect also cannot be conceded. 21. We have heard learned counsels for both sides at length and we find that decision of Special Bench of Tribunal, as relied on by assessee, would not be helpful to decide present case before us as facts are distinguishable. 22. In view of what we have discussed in various paragraphs above, we are of opinion that Commissioner (Appeals) was justified on facts of t h e case in sustaining order of ITO under section 154. We find no substance in appeal of assessee. order of Commissioner (Appeals) is, accordingly, sustained. 23. appeal by assessee is dismissed. *** STEEL TRADING CORPORATION v. INCOME TAX OFFICER