9911796707
TMI Blog1990 (2) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... not to kill the assessee". 2. The assessee, by status, in this case is HUF (specified) whose accounting period was the year ending 31st March, 1983. Return in this case was filed on 21st June, 1985, showing net income of Rs. 97,547. Assessment was completed on 29th Nov., 1985, under s. 144 on total income of Rs. 1,70,000. In the said order, it was mentioned that penal notice under s. 146A had been issued separately. 3. On the returned income of Rs. 97,547, self-assessment tax of Rs. 49,700 was required to be paid. The assessee had paid only Rs. 5,000 by way of advance tax under s. 210. Balance tax of Rs. 44,700 was thus the tax liability required to be cleared on or before filing return of income, on 21st June, 1985. Show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the tax. It was further submitted that the statement of affairs, which was said to have been filed before the learned ITO at the time of finalising the assessment, showed that the assessee had taken loans for investment and these funds could not be withdrawn because the firm required funds for its day-to-day affairs. It was pointed out that in those circumstances, self-assessment tax could not be deposited. Mention was also made of the finding of the Hon'ble Delhi High Court in the case of Addl. CIT vs. Free Wheels India Ltd. (1982) 28 CTR (Del) 85 : (1982) 137 ITR 378 (Del), for the purpose that levy of penalty under s. 140A(3) was not an automatic consequence of a default. Mention was also made of the observations of the Hon'ble Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter investments in HUF, had not much of liquid cash to make payment of self-assessment tax. On behalf of the Revenue, it was pointed out that there was no evidence to prove that there was paucity of funds at the relevant time. 6. Rival submissions on this issue have been heard and considered. In this case, accounting period was the year ending 31st March, 1983 and return was filed on 21st June, 1985, on which date self-assessment tax was required to be cleared. The learned counsel mentioned the position before us as on 30th March, 1983, which is very irrelevant and of no consequence or help. There is no evidence on record to show that on 21st June, 1985 or nearabout, the assessee's financial position was such that self-assessment tax cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be sustained. According to the learned counsel, the effective date for the purpose was 26th Nov., 1986 and not 21st June, 1985 and since the penalty was imposed with reference to the earlier date, the order was illegal and required to be cancelled and the same should have been done by the learned AAC. He placed reliance for this proposition on the ratios of Hon'ble Gauhati High Court in the cases of CIT vs. Assam Travels Shipping Service (1977) 110 ITR 359 (Gau) CIT vs. Golaprai Hoon Lal Co. (1977) 110 ITR 896 (Gau) for the purpose that, if the penalty was not imposed with reference to correct date and law, the order was required to be cancelled. 8. The learned Departmental Representative Sh. M.S. Bhatia supported the finding under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly perused. The facts and various dates mentioned herein above are not seen to be in dispute. Return of income in normal course was submitted by the assessee on 21st June, 1985, showing income at Rs. 97,547 and self-assessment tax liability of Rs. 44,700. That return was acted upon by the parties, when notice issued on 9th Sept., 1985, was served on the assessee on 10th Sept., 1985, when proceedings were attended by Sh. Narinder Singh, learned advocate on behalf of the assessee. The matter got adjourned to 7th Oct., 1985 on the request of the assessee's learned Authorised Representative. Assessment was framed under s. 144 since thereafter the assessee stopped participating in the proceedings before the learned ITO. Assessment was ultimately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the Tribunal, on further appeal, held that the penalty order was not in accordance with law. On reference, Hon'ble High Court held that penalty was imposed contrary to the provisions of sub-s. (2) of s. 271 and thus penalty order framed by the learned ITO was not in accordance with law and the Tribunal correctly confirmed the first appellate order on the point. It is seen that the facts and ratio in the case of Assam Travels Shipping Service were altogether different. Particular provision, i.e., sub-s. (2) of s. 271 had been taken care of and thus the penalty was cancelled and such cancellation was confirmed by the Tribunal, which action was subsequently confirmed by the Hon'ble High Court. In the present case before us, we are not conce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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