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TMI Blog1995 (3) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon him. By his reply dated 6-3-1989, the assessee explained that the estimate had been filed by him well within time but the reason for not paying the advance tax was mentioned by him in his reply. In his earlier reply, the assessee had explained that by reason of the challan having been misplaced, he could not pay the advance tax of Rs. 8,050 but when that mistake came to his notice at the time of filing the return he paid the tax under section 140A at Rs. 10,202 on 4-6-1986. The Assessing Officer did not feel satisfied with this explanation and he held the assessee defaulter for section 273(2)(a) as well. Thus the Assessing Officer found the assessee defaulter for both the provisions of section 273, namely section 273(2)(a) as well as section 273(2)(b) of the Act. The Assessing Officer levied a penalty of Rs. 10,000 accordingly. 3. In appeal, the ld. CIT(A) held that since the assessee had filed an estimate of advance tax payable, he was not a defaulter for the purposes of levying penalty under section 273(2)(b). He further held that since the proceedings were not initiated for assessee's default punishable under section 273(2)(a), he was not to be visited with penalty unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of section 208, send to the ITO--- (a) where he has been previously assessed by way of regular assessment under this Act, a statement of advance tax payable by him computed in the manner laid down in clause (a) or as the case may be, sub-clause (i) of clause (a) of sub-section (1) of section 209 or (b) where he has not previously been assessed by way of regular assessment under this Act, an estimate of--- (i) the current, income, and (ii) the advance tax payable by him on the current income calculated in the manner laid down in section 209, and shall pay such amount of advance tax--- (i) in a case falling under clause (a), as accords with the statement in equal instalments on the dates applicable in his case under section 211 ; and (ii) in a case falling under clause (b), as accords with the estimate in equal instalments on such of the dates applicable in his case as have not expired, or in one sum if only the last of such dates has not expired." 7. It may be seen that the obligation casts on an assessee, who had not been previously assessed by way of regular assessment under the Act, was to send to the ITO an estimate of (i) his current income and (ii) the advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able by him which he knew or had reason to believe to the untrue, or (aa) ** ** ** (b) has failed to furnish an estimate of advance tax payable by him in accordance with the provisions of sub-section (4) of section 209A or under section 212(3A)." 9. It may be noted that section 218, deals with the situation when an assessee is deemed to be in default. It speaks of those assessees who have been assessed to tax by way of regular assessment, but have not paid the instalment of advance tax despite Assessing Officer's notice under section 210 or have failed to pay the advance tax as per their estimates of current income despite such notice. The default contemplated in this section is related to the non-compliance of Assessing Officer's order passed under section 210(3) or 210(4) of the Act. The default contemplated is specifically punishable under section 221 of the Act. 10. The provisions contained in either section 273(2)(a) or (b) on the contrary, do not necessitate the issue of any order of Assessing Officer under section 210 for their application. They intend to punish an assessee who has either totally failed to furnish the estimate of the advance tax payable or if he has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n conformity with or according to the intent or purpose of the Act, such mistake, defect or omission would not invalidate the return of income, assessment notice or summons or the proceedings. Section 292B regard such mistakes, defects or omission as being of procedural natural amounting to curable irregularity only. Any mistake defect or omission, relating to the furnishing of the return, making assessment, issuance of notice or summons and taking of proceedings, which is curable under section 292B does not vitiate the return, assessment, notice or summons or other proceedings. But the true nature and character of the mistake, defect or omission shall have to be considered with reference to the effect or consequences from the mistakes, defects or omissions upon the decision of the issue involved in a given case. 13. Now coming to the merits of the case, we find that the assessee admittedly is a person who had not hitherto been assessed to tax by way of regular assessment. In view of that factual position, the provisions of section 209A(1)(b) were applicable. Further since he had furnished an estimate of advance tax, though not paid such tax, the provisions of section 273(2)(b) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the likely consequences, he deposited the tax under section 140A of the Act. This conduct of the assessee has not been controverted by the revenue. The Assessing Officer has placed no material on record to show that the assessee had deliberately acted in defiance of his statutory obligations under the Act. He has not even mentioned in his order as to how the estimate filed by the assessee was untrue to his knowledge. He did not mention the figures of estimated current income, the returned income and the finally assessed income of the assessee. Under such circumstances the ratio of the decisions of the Madras and Gujarat High Courts in the cases relied upon by the assessee applied to the benefit of the assessee. 16. In the Madras case, which was a case for penalty under section 221, the Madras High Court held that simply because an assessee has incurred the liability to pay penalty, it is not obligatory on the part of the officer to levy a penalty, whether a penalty should be levied or not and if so what should be the quantum of the penalty will depend on the facts and circumstances of each case which will primarily concern whether the default wilful or merely accidental. 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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