9911796707
TMI Blog1990 (11) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... r and sale thereof. The first year of assessment was the assessment year 1983-84. It was a year of loss both as per the return filed by the assessee and the assessment order made by the AO. In the subsequent years, including the two years under consideration, the assessee made profit and was assessed at substantial income. The details regarding the income returned and assessed are : ------------------------------------------------------------------------------------------------------------------------------------------------- Asst. Year Return Assessment ---------------------------------------------------------------------------------------------- Date Amount Date Amount 1983-84 7-1-1985 -240520 25-11-1985 -76504 1984-85 6-1-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and that order of the assessment being completed at a loss, it was neither liable to file a statement of advance-tax under clause (a), of section 209A(1) ; nor an estimate of advance-tax under clause (b) thereof. As the provisions of section 209A(1) were not applicable to the case, the assessee was neither liable to file any estimate nor to pay advance-tax under any other provisions of section 209A. No notice under section 210 was issued by the AO and the assessee was, therefore, not liable to file any estimate or to pay tax under section 212 as well. In this connection. reliance was placed upon the judgment of the Bombay High Court in the case of Patel Aluminium (P.) Ltd. v. Miss K.M. Tawadia, ITO [1987] 165 ITR 99 (Bom.). On merits, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der this Act, on or before the date on which the last instalment, of advance-tax is due in his case under sub-section (1) of section 211, if his current income is likely to exceed the amount specified in sub-section (2) of section 208, send to the Income-tax Officer-- (a) where he has been previously assessed by way of regular assessment under this Act, a statement of advance-tax payable by him computed in the manner laid down in clause (a), or, as the case may be, sub-clause (i) of clause (d) of sub-section (1) of section 209, or (b) where he has not previously been assessed by way of regular assessment under this Act, an estimate of-- (i) the current income, and (ii) the advance-tax payable by him on the current income calculated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase may be, sub-clause (i) of clause (d), of sub-section (1) of section 209, i.e., based on the higher total income of the latest previous year being a year later than the previous year referred to above on the basis of which tax has been paid by the assessee under section 140A. Under clause (b), on the other hand, an assessee is required to file an estimate of his current income and pay tax calculated in a manner laid down in section 209 the manner with which we are not concerned in the present case. 7. The question for our consideration is at what point of time the assessee has to be found to be previously assessed or as the case may be, not so assessed by way of regular assessment--whether at the time when the first instalment under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s stated aforesaid, the first assessment in this case was completed on 25-11-1985. The assessee could not be said to have been previously assessed on or before the first instalment became due on 15-9-1985. It was, therefore, not obligatory for the assessee to file a statement of advance-tax under this clause (a) of section 209A(1). The apprehension of the department that in that case the assessee would escape the liability for advance-tax for the financial year in which the first assessment was made after the first instalment in a case became due is misconceived as the assessing officer has the right under section 210 to issue a notice requiring an assessee to pay advance-tax at any time before the last instalment is due. 9. The Bombay Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regular assessment was made, has no force. In our opinion, the condition precedent for applicability of clause (a) is the existence of a regular assessment on an assessee on or before the first instalment of advance-tax became due. As that is not fulfilled in this case, there was no liability upon the assessee to file a statement of advance-tax under section 209A(1)(a). The liability to pay advance-tax based on the total income for which tax has been paid by an assessee under section 140A for the latest previous year would, therefore, not arise if the last regular assessment was completed at a loss after the first instalment became due. The first assessment order being the basis for determining the liability of the assessee for advance-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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