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TMI Blog1987 (10) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the matter ex parte without hearing even if he had come to the office later. 3. The real injustice has befallen the assessee because he did give a reply to the show cause notice of the ITO whereas the ITO records in his penalty order that no reply is given. The assessee has assured that if the CIT had heard the assessee's Chartered Accountant, this fact could have been pointed out to him and the appeal won by the assessee. 2. The assessee is an individual and was assessed to tax on total income of Rs. 2,61,000 plus. The assessment was completed on 23rd Feb., 1984 and as per the demand notice issued, the amount payable by the assessee was determined at Rs. 58,344 which consisted of balance amount of tax remaining payable of Rs. 72 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 192 (SC). Few more decisions were also cited. 4. The learned Departmental Representative was of the view that penalty was required to be levied on the amount remaining payable as per the demand notice. Further, there was no difference between the word 'tax' and interest since the penalty has to be levied on the amount not paid by the assessee. In support of the submission he brought on our notice provisions contained in s. 229 of the Act and stated that no difference was required to be considered when the levy of penalty was being considered. 5. In our opinion, the stand taken on behalf of the assessee is required to be upheld. Sub-s. (1) of s. 221 of the Act reads as under: "221. (1) When an assessee is in default or is deeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... couched in a different way as can be seen from paras 4 and 5 of the prescribed form of demand notice reproduced below : "4. If you do not pay the amount of tax within the period specified above, penalty (which may be as much as the amount of tax in arrear) may be imposed upon you after giving you a reasonable opportunity of being heard in accordance with s. 221. 5. If you do not pay the amount within the period specified above, proceedings for the recovery thereof will be taken in accordance with ss. 222 to 229, 231 and 232 of the IT Act, 1961." Para 4 refers to penalty payable in case the amount of tax is not paid while para 5 refers to recovery of the amount (which may consist of tax, interest, etc.). Sec. 229 pertains to the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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