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TMI Blog1987 (6) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... e us finally and are constrained to set aside the orders of the ld. CIT(A) with the directions to him to dispose of the appeals de novo in accordance with law for the following reasons. 2. Insofar as penalty u/s. 271(1)(a) of the Act is concerned, the impugned order of the IAC (A) records the facts ut infra. The return of income for the year under appeal was due on or before31-7-1979u/s. 139(1) of the Act. However, no return was filed by that date. The assessing officer records that the assessee asked for extension of time and time was allowed up toSeptember 30, 1979. Thereafter, since no return was filed the assessing officer issued a notice u/s. 139(2) on16-10-1979and served it upon the assessee on17-10-1979calling for a return. In resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te on16-3-1979estimating total income at Rs. 75 lakhs and considering the tax already paid, the balance was paid in two instalments of Rs. 13 lakhs and Rs. 13,25,000 respectively on16-3-79and29-3-79. Thus, the total advance tax paid by the assessee was Rs. 47,50,000. 4. The assessment was completed on 31-3-83 on a total income of Rs. 95,40,700 and the assessing officer issued a notice to show cause why penalty need not be levied, " for failure to submit the estimate on or before 15-3-79 as per requirement of section 209A(4) " of the Act. In the meantime, on10-1-84the assessment was revised u/s. 251 and the total income was determined at Rs. 71,20,120 of which tax payable came to Rs. 44,85,675. However the assessing officer proceeded to le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a choice of not putting on our record any paper by way of paper book. Therefore, the position, that emerged was we have to send the matters back to the CIT(A) for fresh disposal. It is very important to note that the IAC (A) when he levied penalty u/s. 271(1)(a) amounting to Rs. 7,15,680 did not indicate the quantum of tax that he had taken into consideration as due from the assessee and on the basis of which the sum of Rs. 7,15,680 as penalty imposable was arrived at. This was very important for consideration by the ld. CIT(A) as before him it was clear that estimate of advance tax made on16-3-79was because15-3-79was a holiday. If the estimate filed on 16-3-1979 was to be taken as estimate filed in accordance with law then the payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the type that would necessarily follow with regard to the sum of Rs. 13.25 lakhs paid on29-3-79. This dichotomy is essential because the penalty imposed is Rs. 1,27.000. 10. The ld. CIT(A) should have also recorded whether at any stage, the assessee for the purpose of penalty u/s. 271(1)(a) tendered any explanation on there being reasonable cause for delay in furnishing the return. In the impugned penalty order, the IAC(A) has obliquely referred to the fact that there was no reasonable cause for the assessee to return late but this is only an inference drawn and there is no clear cut finding whether the assessee expressed clearly anything about there being reasonable cause for furnishing the return or not. 11. In view of that is stated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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