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TMI Blog2001 (4) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumstances of the case, the order annexure P-3 sustaining the imposition 6f penalty when the Revenue had failed to discharge the onus of proof as imposed on it by law, is legally sustainable ? (v) Whether, in the facts and circumstances of the case, the confirmation of the imposition of penalty is legally sustainable in spite of the specific mandate provided by the court in [1980] 124 ITR 653 ? (vi) Whether, in the facts and circumstances of the case, the sustaining of the imposition of penalty on the estimate of advance tax filed by the assessee while not following the mandatory provisions of section 174(1) of the Income-tax Act, 1961, is legally sustainable ?" The facts necessary for deciding the appeal are that the appellant-assessee initially filed an estimate of advance tax on june 11, 1981, showing a total income of Rs. 2,17,820. On December 15, 1981, it filed a revised estimate in Form No. 29 showing an income of Rs. 44,00,000 and paid tax amounting to Rs. 27,06,000. The return of income was filed on june 29, 1982, in which the assessee declared a total income of Rs. 58,26,380. The assessment was completed under section 154 of the Act on April 15, 1986, at an inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30, 1981, and the estimate of advance tax in question was filed by the appellant on December 15, 1981, i.e., 5 1/2 months after the close of the accounting period. The appellant must, therefore, have been aware of its income for this year when it filed the estimate of advance tax on December 15, 1981. No reason has been given by the appellant as to why the income estimated in the estimate of advance tax is much less than even the income returned, and the circumstances show that the appellant must have been aware of its true income when the estimate of advance tax was filed the accounting year of the appellant having ended 5 1/2 months before the filing of the estimate of advance tax. The rule of evidence in income-tax proceedings is preponderance of probability and in view of the facts mentioned above, it looks highly probable that the appellant knew or had reason to believe that the estimate of advance tax filed by it on December 15, 1981, was untrue. Penalty under section 273(2)(aa) is, therefore, held to be exigible in the facts and circumstances of the instant case. Regarding calculation of penalty and the appellant's contention that the penalty should be imposed at the minimu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid figure had been worked out. It may be appreciated that this is the case of a private limited company whose accounts are audited and the report of the auditor is dated April 16, 1982. The net profit as per profit and loss account was worked out a figure exceeding a crore of rupees and it is not possible to accept that in December, 1981, when the estimate was filed, the assessee had no inkling as to what was its estimated income. A perusal of the order passed by the Tribunal in the quantum appeal, shows that the assessee conceded that the sum on account of import entitlements was taxable and the decisions in the past had been against it. The learned counsel did not place on record the earliest judgment of the Tribunal which had taken a view against it on the point at issue. In the final analysis, we uphold the action of the Commissioner of Income-tax (Appeals) in confirming the penalty under section 273(2)(aa) on the assessee." Shri A. K. Mittal referred to the provisions of sections 28(iii)(a) of the Act to show that the profits on import entitlements were made exigible with retrospective effect from April 1, 1962, by the Finance Act, 1990, and argued that the non-inclusion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... profit on the import entitlements could not have been excluded from the estimate of advance tax because the appellant was conscious about the status of such profits. We have considered the respective submissions. In our opinion, the questions sought by the appellant cannot be treated as substantial questions requiring determination by this court under section 260A of the Act. Section 273(2)(aa) read with sub-section (1)(a) thereof lays down that if the Assessing Officer, in the course of any proceedings in connection with the regular assessment for the assessment year commencing on April 1, 1970, or any subsequent year, is satisfied that any assessee has furnished under sub-section (4) of section 209A or under sub-section (3A) of section 212, an estimate of the advance tax payable by him which he knew or had reason to believe to be untrue, he may direct that such person shall, in addition to the amount of tax, pay by way of penalty a sum which shall not be less than 10 per cent., but shall not exceed 1 1/2 times the amount by which the tax is actually paid during the financial year immediately preceding the assessment year under the provisions of Chapter XVII-C falls short of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer, the Commissioner of Income-tax (Appeals) and the Tribunal about the deliberate filing of incorrect estimate of advance tax cannot be termed as perverse giving rise to a question of law. We are further of the view that non-inclusion of the profits on import entitlements was a deliberate act of not filing the true estimate of income with the object of avoiding payment of advance tax and the appellant cannot rely upon the notice issued by the Supreme Court in the S. L. P. filed against the judgment of the Allahabad High Court in the case of Swadeshi Cotton Mills Co. Ltd. [ 1989] 180 ITR 651, to justify its action, more so because no evidence was produced by it before the Assessing Officer to show that it was relying upon the order passed by the Supreme Court for not including the profit on import entitlements in the estimate of advance tax. The decisions relied upon by Shri Mittal do not have any bearing on the facts of this case. In those eases, this court had found that the assessee was not guilty of deliberately filing incorrect returns and, therefore, there was no justification to impose penalty. As against this, in the present case the concurrent findings recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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