9911796707
TMI Blog1995 (2) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... al income and ultimately after giving effect to the said order of CIT(A) and order under s. 154 recorded by AO on 9th Nov., 1989, the total income stood at Rs. 8,31,588. As initially the AO proceeded under s. 273(2)(a), the proceedings were changed to be under s. 273(2)(c) by subsequent letter and fresh opportunity was also given to the assessee to show cause as to why penalty should not be levied and the assessee submitted before AO that statements of advance tax under s. 209A(a) of the Act were submitted by it on 15th June, 1983 and 13th Sept., 1983 on Nil income though assessee was not under any obligation to file it. The contention of the assessee was that once assessee was not under obligation to file statement of advance tax, no penalty under s. 273(2)(c) was tenable. The contention of the assessee did not find favour with AO who after observing that minimum penalty works out to be 40,004 and maximum at Rs. 6,00,063, levied the maximum penalty of Rs. 6,00,000. 3. The assessee carried the matter before CIT(A) and took the same pleas which were before the AO. According to assessee, the total income of the latest previous year in respect of which it was assessed by way of reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the counsel for the assessee, Shri T.P. shah at length and the learned Departmental Representative and also gone through the materials produced before us as well as the record. 5. The first contention of the learned counsel for assessee is based on technical defect. The learned counsel for assessee pointed out that a perusal of assessment order shall reveal that Assessing Officer at the end of assessment order observed as under: "Notice under s. 274 is issued for default under s. 273(2)(a)" 6. The contention of the learned counsel is that a perusal of above observation shall show that Assessing Officer has recorded the satisfaction if any, to proceed against the assessee for default under s. 273(2)(a) of the Act and penalty under s. 273(2)(c) is not leviable for want of satisfaction recorded by the Assessing Officer for default of assessee in that section. Our attention was also invited to the decision of the Tribunal Cochin Bench in the case of ITO vs. T.S. Padmanabhan (1995) 52 TTJ (Coch) 181 : (1994) 51 ITD 172 (Coch) in which notice was issued for offence under s. 273(2)(a) and penalty was imposed under same section but in alternative the contention of the Revenue was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of s. 212. It was further contended that s. 209A(4) is applicable to those assessees who are liable to pay advance tax under sub-s. (1) or sub-s. (2) or sub-s. (3) as the case may be. It was also the case of the learned counsel that s. 209A(1)(a) requires every assessee to send a statement of advance tax payable by him computed in the manner laid down in cl. (a) or as the case may be, sub-cl. (i) of cl. (d) of sub-s. (1) of s. 209 or sub-s. (2) of s. 209 where assessee has been previously assessed. Relying upon these provisions of s. 209A, the learned counsel pointed out that undisputedly assessee is a regular assessee and he has submitted his return on 13th July, 1983. Prior to this date the regular assessment of the assessee was completed on 6th March, 1982 for asst. yr. 1979-80 at a loss of Rs. 15,63,339. The other facts pointed out by the learned counsel are that returns for asst. yr. 1982-83 and asst. yr. 1983-84 were filed by the assessee on 26th June, 1982 and 24th June, 1983 on Nil income. Considering these facts, the learned counsel argued that assessee was under bona fide belief to infer that his income shall be Nil and advance tax payable shall be nil for the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the part of assessee. Once the assessee was not under any legal duty to file statement under s. 209A(1)(a) then assessee cannot be held to have committed default under s. 273(2)(c) of the Act irrespective of the fact that he returned the income at Rs. 9,40,930 and revised it to Rs. 8,50,976. 10. The learned Departmental Representative contrary to it, has placed reliance on the order of authorities below and submitted further that assessee's total income for the year under consideration was substantial one and he was under obligation to file an estimate as required under s. 209A(4) of the Act and in case he failed to do so, the authorities were justified in imposing the penalty and the first appellate authority had been lenient enough in reducing the maximum penalty of Rs. 6 lakhs imposed by Assessing Officer to Rs. 40,000 which does not require to be disturbed further. 11. To appreciate the arguments of the learned counsel for assessee as well as the view of the learned Departmental Representative based on the orders of the authorities below, it will be in the fitness of things to give out the provisions of s. 273(2)(c) which reads as under : 273(2). If the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of the assessee no doubt the assessee's income for asst. yr. 1979-80 was assessed to a loss figure and return of income submitted by the assessee for asst. yr. 1982-83 and asst. yr. 1983-84 were on nil income but the facts remain that the assessee had filed return of income on 30th June, 1984 at total income of Rs. 9,40,930. It was not only exceeding 33-1/2% but more of it and if provisions of ss. 209A(4) are pressed into services then it was an obligation of the assessee to submit an estimate of the current income by 15th Dec., 1983 and to pay advance tax on such estimate. The assessee cannot be allowed to wriggle out from the specific provisions of s. 209A(4) simply on the pretext that assessment for asst. yr. 1979-80 was at a loss figure and return of income for just two previous years were at nil income because undisputedly the current income of the assessee was substantial one. As the assessee failed to file the estimate, it was required by the assessee under the provisions of s. 209A(4) than naturally penal provisions of s. 273(2)(c) are attracted. 13. The case law relied upon by the assessee are in case where assessees whose income were assessed at Nil in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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