9911796707
TMI Blog1980 (2) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... d a notice was issued under s. 273(a). In reply to the show cause notice it was stated by the assessee that s. 273(a) applied to cases wherein untrue estimates of advance-tax had been filed with knowledge and intent. In the assessee s case, it was stated, since no estimate under s. 212(3) had at all been filed s. 273(a) had no application. It was urged that the penalty proceedings under s. 273(a) be dropped. It was also stated that if the reply of the assessee was not considered satisfactory, another opportunity may be given to the assessee to explain the case personally. ITO did not consider it necessary to give any further opportunity to the assessee. ITO also noticed that it was a new case and the assessee was under the law required to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as bad in law. It was observed by the AAC penalty is to be imposed on an assessee in pursuance of penalty notice issued by the ITO in the course of assessment proceedings and not on the basis of the findings given in the assessment order. In the present case, the learned AAC observed further, no notice under s. 273(b) of the Act had been issued by the ITO and as such the question of levying the penalty under s. 273(b) did not arise. On that view the AAC cancelled the impugned penalty. 4. Against the order of the learned AAC the Revenue has come up in appeal. It is urged by the learned Deptl. Representative that the facts of the case indicated clearly that the default of the assessee was under s. 273(b). The notice under s. 273(a) had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the assessee failed to do. There was thus a default which attracted the penal provision of s. 273(b). In the course of the assessment proceedings ITO directed issue of penalty notice under s. 273. The notice which was actually given was clearly under s. 273(a). It indicated clearly that it was for filing of untrue estimate of advance-tax with knowledge and intent. The assessee replied to this show cause notice pointing out that since no estimate had been filed at all, the question of filing any incorrect estimate did not arise and as such s. 273(a) had no application and requested that the proceedings may be dropped. At the same time the assessee requested for further opportunity if the reply given was not found to be satisfactory. On rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee had specifically asked for. The assessee had no opportunity to explain to the ITO whether the failure to file the estimate was or was not reasonable cause. The ITO also naturally could not come to a proper conclusion whether reasonable cause had existed or not. 8. On behalf of the Revenue reference has been made to s. 292B. This provision covers omission to mention correct provisions of the Act in the notice or proceedings provided in substance the notice or the proceeding is in conformity with or according to intent and purpose of the Act. In the present case it cannot be said that a mere omission contemplated in s. 292B had occurred. As stated, penalty is to be levied on the basis of a charge which has to be specified to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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