9911796707
TMI Blog1971 (4) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... essed to income-tax by the Income-tax Officer, B-Ward, Allahabad. On August 6, 1968, the Income-tax Officer served a notice of demand under section 156 of the Income-tax Act, 1961, requiring the petitioner to pay Rs. 11,292 in instalments during the financial year 1968-69 as advance tax under section 210 of the Act. It appears that the petitioner omitted to pay the advance tax. She says that she was preoccupied with the marriage of her daughter. She also claimed that she would have filed a revised estimate inasmuch as the income during the financial year 1968-69 was low, and this was evidenced subsequently by the assessment order for the assessment year 1969-70 whereby the total income was computed at Rs. 18,444 on which the tax liability c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 221. Now "tax" has been defined by section 2(43) of the Act in the following terms: "(43) 'Tax', in relation to the assessment year commencing on the 1st day of April, 1965, and any subsequent assessment year, means income-tax chargeable under the provisions of this Act..." Income-tax is chargeable under section 4(1), which provides: "4. Charge of income-tax.-(1) Where any Central Act enacts that income-tax shall be charged for any assessment year at any rate or rates, income-tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of, this Act in respect of the total income of the previous year or previous years, as the case may be, of every person : ......" Then follows sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 4." For convenience such tax has been referred to as "advance tax" in Chapter XVII. Nevertheless, in substance, it is income-tax. The petitioner contends that section 221 does not cover a case where the assessee had defaulted in paying advance tax. It is urged that section 221 is confined to defaults in making payment of a tax other than advance tax, for example, income-tax determined by an assessment order upon which a notice of demand is issued. Now, it is true that section 221 does not expressly refer to a default made in making a payment of advance tax. It reads: "221. Penalty payable when tax in default.-(1)When an assessee is in default or is deemed to be in default in making a payment of tax, he shall, in addition to the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut that rule 38 of the Income-tax Rules, 1962, provides for the form of a notice of demand in respect of advance tax served upon the assessee in pursuance of an order under section 210. The notice is in Form No. 28. Paragraphs 6 and 7 of the statutory form warn the assessee that if the instalments of the advance tax are not paid on or before the due dates the assessee will be treated to be in default in respect of such instalments and will be liable under section 221 to a penalty. On behalf of the revenue, we have been referred to Narayanappa Brothers v. Income-tax Officer, Bangalore. In that case the Mysore High Court laid down that the power to impose a penalty under section 46(1) and section 46(1A) could be employed in the case of an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 221. Section 221 deals with the imposition of a penalty. When we turn to other penalty provisions in the Act, for example, sections 270, 271, 272 and 273, we find that the authority has been plainly named. As the authority has not been specified for the purposes of section 22l, that section is an incomplete provision, and it is not for the court, we think, to supply the omission and complete it. It appears that the omission was noticed recently, and in the Taxation Laws (Amendment) Act, 1970, section 38 substitutes for the original section 221(1) a new sub-section clearly mentioning the Income-tax Officer as the authority empowered to impose penalty. Section 38 provides: " 38. In section 221 of the Income-tax Act, for sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It was urged on behalf of the revenue that the petitioner was not entitled to invoke the jurisdiction of this court under article 226 of the Constitution inasmuch as he had preferred the revisional jurisdiction of the Commissioner of Income-tax when he should have filed an appeal to the Income-tax Appellate Tribunal and, thereafter, come to this court in reference. We are referred to the observations of a Bench of this court in Writ Petitions Nos. 3160 and 3161 of 1968 decided by Oak C.J. and H.N. Seth J. We think that the circumstances in which the observations were made in that case do not exist before us. The objection is overruled. It was then urged that there was no apparent error of law or of jurisdiction and, therefore, a writ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
