9911796707
TMI Blog1990 (5) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... accountant had constantly been ill the accounts were not finalised; (ii) extension up to 30-9-1982 had been prayed and (iv) tax paid in advance exceeded the tax assessed. 3. In the penalty order the ITO dealt with the ground relating to the sickness of the assessee's accountant and held that the same ground had also been raised by the assessee in respect of the late filing of the return for A.Y. 1977-78 onwards and, therefore, that was not acceptable. He made no comments on ground Nos. (ii) (iii) above and levied penalty of Rs. 59,110 under section 271(1)(a). 4. In appeal, the AAC, at the very outset pointed out that the assessee-firm had filed an extension application seeking time up to 30-9-1982. But the learned AAC does not appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion up to 30-9-1982 by moving an application in form No. 6. After having recorded such a satisfaction he must have considered the effect thereof on the quantum of penalty, if he wanted to sustain any part of the penalty levied. His order would require modification for that reason also. 7. Now the main controversy involved in this appeal relates to the point as to what could be the effect of advance tax payment by an assessee in excess of the assessed tax in the context of levy of penalty upon him for filing his return of income late. This question seems to have been considered by the Gujarat High Court in the case of CIT v. R. Ochhavlal Co. [1976] 105 ITR 518 wherein it was held that once it is found that a registered firm has render ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l had further held that the payment of advance tax in excess of the assessed tax by the assessee clearly showed that there was no contumacious conduct on the part of the assessee. Following the Full Bench decision of the Gujarat High Court in the case of I.M. Patel Co., the Tribunal had further held that no penalty was required to be imposed upon the assessee in that case in view of his conduct. The Hon'ble High Court fully agreed with the view taken by the Tribunal and further observed that the fact that the assessee was entitled to refund clearly disclosed that there was no contumacious conduct on the part of the assessee. Therefore, following the decision in the case of I.M. Patel Co., the High Court confirmed the order of the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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