9911796707
TMI Blog1990 (11) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn was filed paying the admitted tax of Rs. 7,11,669 on the basis of self-assessment. The petitioner was surprised when he received exhibit P-2 notice dated December 22, 1987, asking it to explain why penalty should not be levied under section 17A(3) for the delay in payment of the tax and failure to file the return on June 1, 1987. Elaborate objections under exhibit P-3 were filed on December 25, 1987. Without a proper consideration of exhibit P-3 objections, and the correct legal position, exhibit P-4 order was passed levy ing a penalty of Rs. 42,700. This order was passed on January 9, 1987. Immediately exhibit P-3 revision was filed on March 22, 1987, before the Commissioner, Board of Revenue. The Commissioner as per his order, exhibit P-6, rejected the revision and confirmed the order in exhibit P-4. Hence, this original petition is filed to quash exhibit P-4 and exhibit P-6 order confirming exhibit P-4. It is contended on behalf of the petitioner that, under the scheme of the Act, there is no power for levying penalty under section 17A(3), when, in fact, the admitted tax is paid before the return is filed and when proof of payment of the admitted tax is filed along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... April 1, 1980. If we examine the scheme of the Act, we find that, under section 17(1), an assessee has the liability to file a return on or before June 1, if the agricultural income exceeds the maximum amount which is not chargeable to agricultural income-tax. Under section 17(2), the Agricultural Income-tax Officer is empowered to issue a notice to a person if the Agricultural Income-tax Officer is of the opinion that the person's income renders him liable to file a return. Under section 17(3), if a person has not furnished a re turn within the time allowed by section 17(1) or within the time granted under the notice issued under section 17(2) or, having furnished the return, discovers any omission or wrong statement therein, then he may furnish a return or a revised return at any time before the assessment is made. Thus, it is clear that the primary obligation is on the assessee to file a return on or before June 1. Under section 17(3), in cases where he fails to furnish a return or when he discovers a mistake or omission in the return filed, he can furnish a return or a revised return at any time before the assessment is made. The language of section 17(3) clearly indicates th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such regular assessment. (3) If any person fails to pay the tax or any part thereof in accordance with the provisions of sub-section (1), the assessing authority may direct that a sum equal to two per cent. of such tax or part thereof, as the case may be, shall be recovered from him by way of penalty for every month during which the default continues : Provided that, before levying any such penalty, the person shall be given a reasonable opportunity of being heard. (4) When any tax is due under this section or any penalty is due in consequence of any order passed under this section, the assessing authority shall serve on the person a notice of demand in the prescribed form specifying the sum so payable." Sub-section (1) of section 17A stipulates that the person who is liable to furnish a return shall pay the total tax on the admitted agricultural income shown in the return. The return should also be accompanied by proof of payment of the tax. Sub-section (2) provides for reckoning the amount paid under sub-section (1) towards the regular assessment once the regular assessment is made under section 18. Sub-section (3) contemplates two contingencies where the penalty as stip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are as follows. If the authority extends the time for filing the return under section 65, no action can be taken against the assessee for filing the return after the due date. Action under section 20(1), 52 and 53 cannot be taken. Neither can a fine or penalty be imposed, nor can he be prosecuted. Under the scheme of the Act, sanctions or consequences provided for delayed filing of the returns are only in sections 20(1), 52 and 53. As far as section 17A is concerned, it only deals with the system of self-assessment and payment of the admitted tax. As long as the admitted tax is paid before filing the return and proof of payment of the admitted tax is produced along with the return, no action can be taken to levy any penalty under section 17A(3). The decisions cited under the Income-tax Act clearly show that, in cases where no orders were passed on the application for extension of time for filing the return, the assessee is justified in construing the silence as sanction of his request. The decision in Lachman Chaturbhuj Java v. R. G. Nitsure [1981] 132 ITR 631 (Bom) clearly lays down that the assessee is justified in assuming that the silence on the part of the Department is conse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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