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TMI Blog1992 (7) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act before the due date but failing to make payment of advance tax in accordance with the said estimate, penalty under section 273(2)(c) of the Act cannot be levied ? 2. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in law in cancelling the penalty imposed under section 273(2)(c) of the Income-tax Act, 1961 ? " In order to answer the aforesaid questions, it will be necessary to have a glance at a few relevant facts which are stated herein : (i) The assessee is an individual who derived his income from salary, property as well as share of profit from two firms. He was regularly assessed from the assessment year 1966-67. He was called upon by the Income-tax Officer to make paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebruary 9, 1977, allowed the appeal preferred by the assessee and vacated the order passed by the Income-tax Officer and as confirmed by the Appellate Assistant Commissioner. The Tribunal found that the assessee did file an estimate of advance tax payable by him under section 212(3A) of the Act before the due date, but that he has failed to make payment of advance tax in connection with the said estimate and that, for such default, the provisions of section 273(2)(c) would not be attracted. (v) On being moved under section 256(1) of the said Act, the above mentioned two questions are referred to us for our opinion. In order to answer the aforesaid questions, it would be necessary to set out the provisions of section 212(3A) as it stood a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., he is required on or before the date on which the last instalment of advance tax is due from him, to send to the Income-tax Officer an estimate of (i) his current income and (ii) the advance tax payable by him on the current income calculated in the manner laid down in section 209, and he shall pay such amount of advance tax as accords with his estimate. The liability of the assessee is, therefore, to send to the Income tax Officer an estimate of his current income and the advance tax payable by him and he is also liable to pay such amount of advance tax as accords with his estimate. In the present case, admittedly, the assessee has sent to the Income-tax Officer an estimate of his current income and the advance tax payable by him on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 273(2)(c) is very clear. What is stipulated is that, on the failure of an assessee to furnish an estimate of advance tax payable by him in accordance with the provisions of sub-section (3A) of section 212, penalty can be imposed. The question that arises for our consideration is as to whether it can be said that, in the facts and circumstances of this case, the assessee has failed to furnish an estimate of advance tax payable by him in accordance with the provisions of section 212(3A). Factually, the assessee has furnished an estimate of advance tax payable by him as required by section 212(3A). So far as furnishing of an estimate of advance tax is concerned, therefore, it cannot be said that the assessee has failed to furnish an esti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission, the aforesaid obligations are interconnected and if only the estimate of advance tax is sent to the Income-tax Officer without paying the advance tax which is payable as per the estimate, the liability to penalty is incurred. In our opinion, the liability for penalty under section 273(2)(c) is incurred by the assessee only when the assessee fails to furnish an estimate of advance tax payable by him in accordance with the provisions of section 212(3A). Section 273(2)(c) does not deal with the liability which may arise because of failure of the assessee to pay such amount of advance tax as accords with the estimate of advance tax. In fact, section 273(2)(c) specifically deals with failure to furnish the estimate of advance tax payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take action under section 221 of the said Act. Since, in reference jurisdiction, our jurisdiction is advisory and since reframing of question is not permissible for us in the facts and circumstances of this case, we are of the opinion that the request of Mr. B. J. Shelat cannot be entertained. In our advisory jurisdiction, we are required to give our opinion on the questions which are actually referred to us for our opinion and which arise out of the judgment of the Income-tax Appellate Tribunal. However, in the facts and circumstances of this case, we may observe that the Revenue will be at liberty to take appropriate proceedings against the assessee in accordance with law. We answer the reference accordingly by answering the questions r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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