I.S. NIGAM, A. M.: This is appeal filed by assessee-company against order of CIT (A) VI, Bombay. assessee is (P) Ltd. Co., and appeal relates to asst. yr. 1980-81. first grievance in this appeal is that unabsorbed deficiency brought forward from earlier assessment years has wrongly been determined at Rs. 12, 974 as against Rs. 92, 228. On this basis it had been claimed that assessment had wrongly made on total income of Rs. 73,630 when no assessment should at all have been made. This claim is based on decision of Hon ble High Court of Calcutta in case of Century Enka Ltd. vs. ITO 1976 CTR (Cal) 493; (1977) 107 ITR 909 (Cal). Both assessee s ld. Counsel, Shri V. H. Patil, as well as ld. Departmental Representative, Shri Vohra, submitted to us that after decision of Hon ble Supreme Court in case of Lohia Machines Ltd. & Anr. vs. Union of India & Ors. (1985) 44 CTR (SC) 328; (1985) 152 ITR 308 (SC), decision on this issue has to be in accordance with law laid down by Hon ble Supreme Court. We have carefully considered rival submissions. Hon ble Supreme Court in case of Lohia Machines Ltd. & Anr. Vs. Union of India & Ors. having overruled judgment of Hon ble Calcutta High Court in case of Century Enka Ltd. vs. ITO and having upheld validity of both r. 19A of IT Rules, 1962 and retrospective amendment of s. 80J brought about by Finance (No. 2) Act, 1980 w.e.f 1st April 1972, there is no merit in assessee s grievance on this point. Even otherwise, deficiency brought forward for this year has been worked out in respective assessment years in which deficiency took place and has been considered in appeals arising out of assessments of those years. No grievance on this issue, therefore, can be raised in present appeal. Thus from whatever way matter is looked into, there is no merit in assessee s grievance on this issue. next grievance in this appeal is against charge of interest under s. 217 amounting to Rs. 15,420. assessee s ld. Counsel, Shri Patil, pointed out that interest under s. 217 had been levied for omission or failure of assessee to submit voluntary estimate of advance tax as required by s. 209A and for this purpose it is necessary that assessee must be person referred to in s. 209A. Our attention was invited to s. 209A, where it has been mentioned that this section applies to that person whose current total income is likely to exceed Rs. 2,500. It was pointed out by Shri Patil that advance tax estimate had to be filed within financial year 1979-80 or to be more precise by 15th Dec., 1979 and till that date computation of capital employed under s. 80J of IT Act, 1961 and consequently deduction under s. 80J based thereon was as laid down by decision of Hon ble High Court of Calcutta in case of Century Enka Ltd. vs. ITO 1976 CTR (Cal) 493; (1977) 107 ITR 909 (Cal), Hon ble High Court of Madras in case of Madras Industrial Limings Ltd. vs. ITO 1978 CTR (Mad) 45: (1977) 110 ITR 256 (Mad), Hon ble High Court of Allahabad in case of CIT vs. U. P. Hotel Restaurant Ltd. (1980) 123 ITR 626 (All). Kota Box Mfg. Co. Ltd. vs. ITO (1980) 123 ITR 623 and Rampur Distillery & Chemical Co. Ltd. vs. CIT (1983) 30 CTR (All) 285: (1982) 140 ITR 725 (All), Hon ble High Court of Punjab and Haryana in case of Ganesh Steel Industries vs. ITO (1980) 18 CTR (P&H) 109; (1980) 126 ITR 258 (P&H) and Hon ble High Court of Andhra Pradesh in case of Warner Hindustan Ltd. vs. ITO (1982) 134 ITR 158 (AP). Elaborating on his arguments, Shri Patil submitted that till time advance tax estimate was due, retrospective amendment of s. 80J brought about by Finance (No. 1) Act, 1980 which became law on 25th Aug., 1980, or decision of Hon ble Supreme Court in case of Lohia Machines Ltd. & Anr. vs. Union of India & Ors. (supra) which was rendered in 1985, was not available. In these circumstances, if according to these decisions of various High Court deficiency brought forward for this year was Rs. 92,228, which was mores who was required by s. 209 to file voluntary estimate of advance tax. He, therefore, submitted that according to law as laid down by various judicial pronouncements at time estimate was due, assessee had no liability for payment of advance tax or for furnishing of advance tax estimate as required by s. 209A. On this basis, Shri Patil submitted that charge of interest under s. 217 amounting to Rs. 15,420 was not justified and should be cancelled. On other hand, ld Departmental Representative, Shri Vohra, referred to three rulings of Hon ble High Court of Bombay in case of CIT vs. Daimler Benz, A. G. 1977 CTR (Bom) 568; (1977) 108 ITR 961 (Bom), CIT vs. Shantilal J. Mehta (1981) 24 CTR (Bom) 127; (1981) 132 ITR 453 (Bom) and CIT vs. P. Rajesh & Co. (1984) 41 CTR (Bom) 183 in support of contention that appeal against charge of interest under s. 217 does not lie. Reference in this connection was made by him to observations of Hon ble High Court of Bombay in case of CIT vs. Shantilal J. Mehta (supra) wherein their Lordships laid down that denying liability to be assessed or be subjected to advance tax alone can justify appeal on issue of penal interest, Reference was also made by him to ruling of Hon ble High Court of Madhya Pradesh in case of Vineet Talkies vs. CIT (1984) 41 CTR (MP) 130, where their Lordships laid down that no appeal under s. 246 (c) lies against levy of interest under s. 217 (1A). He, therefore, vehemently argued before us that assessee s appeal against charge of interest under s. 217 should not be entertained by us. assessee s ld counsel, Shri Patil, on other hand, took us through ruling of Hon ble High Court of Bombay in case of Shantilal J. Mehta (1981) 24 CTR (Bom) 127: (1981) 132 ITR 453 at 456 (Bom). where their Lordships refused to entertain assessee s contention on ground that there was no denial of liability to be assessed under Act before lower authorities and this argument cannot be considered for first time at stage of Hon ble High Court. He also took us through ruling of Hon ble High Court of Bombay in case of CIT vs. Daimler Benz A. G., where their Lordships laid lown that while no appeal will lie under garb of denying his liability to be assessed under Act where quantum of penal interest or its reduction or waiver was urged, appeal will lie where assessee denies completely his liability to pay any interest. It was also pointed out by him that in third case of CIT vs. P. Rajesh & Co. decided ex parte by Hon ble High Court of Bombay, their Lordships followed Full Bench decision in case of CIT vs. Daimler Benz, A. G. (supra). He also referred to number of other decisions of other High Court, e.g. Hon ble High Court of Calcutta in case of CIT vs. Lalit Prasad Rohini Kumar (1979) 8 CTR (Cal) 332; (1979) 117 ITR 603 (Cal) against which even Special Leave Petition by Department was dismissed by Hon ble Supreme Court (1984) 143 ITR (St.) 64 and other Hon ble High Courts in cases of National Products vs. CIT 1976 CTR (Kar) 179; (1977) 108 ITR 935 (Kar), Bhikhoobhai N. Shah vs. CIT 1978 CTR (Guj) 172; (1978) 114 ITR 197 (Guj), CIT vs. Karam Chand Thapar & Bros. (P.) Ltd. (1979) 119 ITR 751 (Cal), CIT vs. Mahabir Prashad & Sons (1980) 17 CTR (Del) 161: (1980) 125 ITR 165 (Del), CIT vs. Associated Stone Industries (Kotah) Ltd. (1981) 130 ITR 868 (Raj) and Bihar State Road Transport Corporation vs. CIT (1984) 43 CTR (Pat) 129 (FB); (1984) 149 ITR 208 (Pat) (FB), in all of which it was laid down that where there is total denial of liability against charge of interest, appeal lies and in some of which it was further laid down that appeal lies against charge of interest in all cases. We have carefully considered rival submissions. When we have judgments of Hon ble High Court of Bombay, we would prefer to follow them since law laid down by Hon ble High Court of Bombay is binding authority for us. Full Bench of Hon ble High Court of Bombay in case of CIT vs. Daimler Benz, A. G. (supra) laid down that while appeal does not lie where assessee urges reduction or waiver of interest, appeal lies where there is total denial of liability to charge of interest. This ruling of Full Bench of Hon ble High Court of Bombay was followed in case of CIT vs. Shantilal J. Mehta (supra), where assessee s claim was not entertained on ground that before lower authorities there was no total denial of liability to charge of interest and this claim could not be considered for first time at stage of Hon ble High Court and again in case of CIT vs. P. Rajesh & Co. (supra) where, in order passed ex parte, their Lordships held that, on facts of that case, Full Bench decision in case of CIT vs. Daimler Benz, A. G. (supra) was fully applicable. Viewed in this context, it is not under dispute that in present case both before CIT (A) and before us there was total denial of liability to charge of interest under s. 217. We have, therefore, no hesitation in coming to conclusion that appeal on this point lies. Coming to merits, it cannot be disputed that, according to judgments of Hon ble High Court of Calcutta in case of Century Enka Ltd. vs. ITO & Ors. (supra) decisions available till due date of filing of advance tax estimate, i.e. 15th Dec. 1979, deficiency under s. 80J brought forward from earlier years was more than income for current year, which, it will be necessary here to point out, has been assessed at Rs. 73,630 after allowing unabsorbed deficiency of Rs. 12,974 instead of Rs. 92,228 according to judgments as already described . In these circumstances, if assessee did not file advance tax estimate because according to various judicial pronouncements of Hon ble High Courts of Calcutta and other High Court, assessee s current total income was nil and assessee could not foresee retrospective amendment of s. 80J brought about by Finance (No. 2) Act, 1980 on 25th Aug., 1980 or judgment of Hon ble Supreme Court in case of Lohia Machines Ltd. & Anr. vs. Union of India & Ors (supra), which were rendered in 1985, assessee cannot be held liable for default of not filing advance tax estimate as required by s. 209A and consequently assessee cannot be made liable to interest under s. 217. charge of interest under s. 217 amounting to Rs. 15,420, therefore, in our view, was unjustified and is hereby cancelled. appeal is partly allowed. *** HEATEX PRODUCTS (P) LIMITED v. INCOME TAX OFFICER