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TMI Blog1974 (9) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... the year 1969-70 for payment of advance tax of Rs. 54,910. That was on August 21, 1968. He was asked to pay the advance tax in three instalments on or before September 1, 1968, December 1, 1968, and March 1, 1969. The assessee defaulted in payment of the first and second instalments. Then a showcause notice was issued by the Income-tax Officer proposing to levy penalty and, thereafter, a penalty of Rs. 7,340 was imposed under section 221(1) of the Act by his order dated March 7, 1969. The assessee preferred an appeal to the Appellate Assistant Commissioner contending that on account of financial difficulties he could not pay the advance tax in time and as and when he was able to pay he was paying the taxes. While agreeing with the plea of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (2) of section 220, be liable to pay by way of penalty, an amount which, in the case of a continuing default, may be increased from time to time, so, however, that the total amount of penalty does not exceed the amount of tax in arrears : Provided that before levying any such penalty the assessee shall be given a reasonable opportunity of being heard. (2) Where as a result of any final order the amount of tax, with respect to the default in the payment of which the penalty was levied, has been wholly reduced, the penalty levied shall be cancelled and the amount of penalty paid shall be refunded." It is because of the absence of the words " advance tax " in the section and the use of the word " tax " the learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income of the previous year or previous years, as the case may be, of every person : Provided that where by virtue of any provision of this Act income-tax is to be charged in respect of the income of a period other than the previous year, income-tax shall be charged accordingly. (2) In respect of income chargeable under sub-section (1) income-tax shall be deducted at the source or paid in advance, where it is so deductible or payable under any provision of this Act." Payment of tax in advance occurs only in the charging provision and " advance tax " as such is not defined in the Act. Section 190 provides for tax on income being payable by deduction at source or by advance payment, as the case may be. When under section 190 the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 210, he will be deemed to be in default. Section 219 provides for credit being given for advance tax. Even where a provisional assessment is made, credit will be given for the advance tax paid in such provisional assessment. In view of the scheme of the provisions of sections 207 to 219 it would be difficult to agree with the view of the Tribunal that " advance tax " is not a tax. The charging provision, section 4, provides for payment of tax in advance on the basis of the tax assessed for the previous assessment year. The fact that section 221(1) "as unamended " did not specify the authority to impose penalty is not significant. In the context and setting of section 221, the authority contemplated could be no other than th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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