9911796707
TMI Blog2014 (7) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... , the penalty imposed is set aside – Decided in favour of assessee. - Income Tax Appeal No. - 73 of 2002 - - - Dated:- 3-7-2014 - Hon'ble Rajes Kumar And Hon'ble Shashi Kant,JJ. For the Appellant : R. S. Agrawal For the Respondent : A. N. Mahajan, Ashok Kumar, Bharatji Agarwal, D. Awasthi, G. Krishna,R. K. Upadhaya, S. Chopra ORDER (By the Court) This is an appeal under Section 260A of the Income Tax Act (hereinafter referred to as the Act ), filed against the order dated 28.2.2002 passed by the Income Tax Appellate Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as the ( Tribunal ) relating to the assessment year 1982-83. The appeal has been admitted on the following substantial questions of law: (i) Whether on a true and correct interpretation of the provisions section 273 (2) (C), the ITAT was legally correct I upholding the levy of penalty thereunder? (ii) Whether on the facts and circumstances of the case, particularly that the assessee did not carry any obligation to pay advance tax and/or file an estimate of advance tax, in view of the availability of losses for the assessment years 1980-81 and 1981-82 on the relevant da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o furnish the estimate of advance tax as required under sub-section (4) of Section 209A of the Act. The appellant filed reply to the show cause notice. However, the assessing authority has not accepted the reply of the appellant and vide order dated 25.10.1990 levied the penalty at ₹ 16,00,000/-. Being aggrieved by the penalty order, the appellant filed an appeal before the Commissioner of Income Tax (Appeal) which has been dismissed vide order dated 11.10.1993. Against the order of the Commissioner of Income Tax (Appeal), the appellant filed second appeal before the Tribunal. The Tribunal vide order dated 28.2.2002 allowed the appeal in part. The Tribunal has confirmed the levy of penalty and has reduced the quantum of penalty from ₹ 16,00,000/- to ₹ 5,50,000/-. Being aggrieved, the present appeal has been filed. Learned counsel for the appellant submitted that the appellant had filed first estimate on 9.6.1981 showing advance tax liability at nil. The estimate has not been further revised under sub-section (4) of Section 209A of the Act which could be revised on 15.9.1981 and 15.12.1981 on the bonafide belief that the appellant had suffered loss during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall, in addition to the amount of tax, if any, payable by him, pay by way of penalty a sum--... (I)...................... (ii)............................. (iii) Section 209A. Computation and payment of advance tax by assessee. (1)........................... (2).............................. (3)................................. (4) In the case of any assessee who is liable to pay advance tax under sub-section (1) of sub-section (2) or, as the case may be, sub-section (3), if, by reason of the current income being likely to be greater than the income on which the advance tax so payable by him has been computed or for any other reason, the amount of advance tax computed in the manner laid down in section 209 exceeds the amount of advance tax so payable by him by more than 33-1/3 per cent. of the latter amount, he shall, on or before the date on which the last installment of advance tax is payable by him, send to the Income-Tax Officer 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 as accords with his esti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (4) of Section 209A of the Act, the assessee was liable to pay advance tax under sub-section (1) or sub-section (2) or, as the case may, sub-section (3), if, by reason of the current income being likely to be greater than the income on which the advance tax so payable by him has been computed or for any other reason, the amount of advance tax computed in the manner laid down in Section 209 on the current income exceeds the amount of advance tax so payable by him by more than 33-1/3 per cent. of the latter amount. The penalty under Section 273 (2) (c) is leviable if the assessing authority is satisfied that the assessee has without reasonable cause failed to furnish the estimate of advance tax payable by him in accordance with the provisions of sub-section (4) of Section 209A of the Act. Admittedly, in the present case, the appellant had filed an estimate of income on 9.6.1981 showing the advance tax liability at nil. The estimate has not been further revised in the months of September and December, 1981. The question for consideration is whether there was a reasonable cause in not revising the estimate in the months of September and December, 1981. In case if there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, small or large, may show that an honest and fair estimate was made by the the assessee and there was no conscious or deliberate furnishing of untrue estimate. The Calcutta High Court has relied upon the various decisions of other High Courts while arriving to the aforesaid conclusion. In the present case, as stated above, on the day when the assessee was obliged to revise the return, the appellant had a bonafide belief of loss inasmuch as the details of the returns for the assessment years 1980-81 and 1981-82 were available. For both the assessment years, the returns of loss were filed, thus, it can be reasonably inferred that the appellant acted bonafidely in not revising the estimate under Section 209A (4) of the Act. The decision relied upon by the learned Standing Counsel appearing on behalf of the respondent is not applicable to the present case. It relates to the assessment year 1979-80. In this case, a notice under Section 210 of the Act was issued on 12.6.1978 requiring the assessee to pay a sum of ₹ 5,73,08,130/-. The assessee filed its estimate of advance tax on 14.6.1978, in which the income declared was nil and no amount was paid towards advance tax. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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