9911796707
TMI Blog1982 (5) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... was due on 15-12-1976. The assessee, however, filed the estimate on 26-3-1977 and paid advance tax of Rs. 33,935. The assessee-firm was not assessed previously and the estimate was made under section 212(3). After the assessment, the tax liability was determined at Rs. 46,035. The ITO took this as the tax liability and found that 75 per cent of that was Rs. 34,525. As against this, he considered that the assessee had not paid any advance tax as such because the estimate was filed beyond the due date of the filing of the estimate by the assessee. In the actual assessment the sum of Rs. 33,935 was taken as tax otherwise paid. The minimum penalty leviable was Rs. 3,453 and the maximum penalty of Rs. 51,789. The ITO, as mentioned earlier, has l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Gujarat High Court in CIT v. Kohinoor Flour Mills [1975] 99 ITR 54 is more or less on the facts identical to the facts in the case of the assessee here and it has been held in that case that the tax belatedly paid as advance tax should be taken out of the reckoning for the purpose of quantifying the penalty under section 273(b). It is also submitted that the assessee has voluntarily filed the estimate and paid the advance tax even though there was a delay in making the estimate and paying the tax. This according to the assessee's counsel would clearly show that the assessee is not guilty of any contumacious conduct and, therefore, in view of the decision of the Supreme Court in Hindustan Steel Ltd. v. State of Orissa [1972] 83 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estimate and, therefore, the assessee comes clearly within the provisions of section 273(b). It is pointed out that the facts in the case of Santha S. Shenoy are that there has been a valid estimate but only the payment was delayed, but in the case of the assessee here the estimate filed being beyond the due date for the filing of the estimate is not a valid estimate. It is also pointed out that even if the sum of Rs. 33,935 is given credit to, the penalty levied by the ITO would still be within the limits laid down under section 273. 4. We have carefully considered these arguments. The assessee has filed an estimate of the advance tax payable by him beyond the date on which the assessee should have made that estimate. This date was 15-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en further observed that penalty will not also be imposed merely because it is lawful to do so. The circumstances in this case, viz., that the assessee proceeded to comply with the legal requirement under section 212(3) although beyond the due date prescribed in the relevant provision, clearly establish that the assessee has not acted deliberately in defiance of law and that the assessee is not guilty of conduct which is contumacious or dishonest. We would, therefore, hold that the assessee is not liable to penalty under section 273. The ITO has proceeded to levy penalty under section 273(b) treating the estimate filed by the assessee as not a valid estimate. Since the penalty proceedings have been taken by the ITO under section 273(b) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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