TMI Blog1994 (6) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... this statement, the assessee paid instalments of advance tax due in September and December 1981. The last instalment of advance tax was due on 15-3-1982. On that date, the assessee filed an estimate in Form No. 29 showing his income at Rs. 2,26,000 and balance advance tax payable at Rs. 1,21,084. The advance tax due was not paid in March 1982. The assessment was made on 21-3-1985 on a total income of Rs. 4,94,800. The Income-tax Officer initiated penalty proceedings under section 273(2)(a) on the ground that the assessee had not paid the advance tax properly and the estimate of advance tax was not correct. He had not explained the reason for the variation in the advance tax paid and payable nor had he explained the non-payment of tax as com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act would arise. The CIT (Appeals) held that the penalty under section 273(2)(a) would arise only when the Income-tax Officer concludes that the statement filed under section 209A(1) or 209A(2) or 209A(3) or 209A(5) was false and untrue. In the present case, the assessee was governed under section 209A of the Act. He was regularly assessed to tax. The last completed assessment was for the assessment year 1980-81 on a total income of Rs. 62,070. Under section 209A(1), the assessee adopted that figure and paid the tax. Hence, there was no liability under sub-section 2, 3 or 5 of section 209A. Since the assessee has complied with the provisions of section 209A(1) fully, there can be no default much less a charge that he had estimated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15-9-1981 and 15-12-1981. There was no dispute over this fact. But the Income-tax Officer invoked the provisions of section 273(2)(a) and imposed penalty. Section 273(2)(a) reads as follows : "273(2) If the Income-tax Officer, in the course of any proceedings in connection with the regular assessment for the assessment year commencing on the 1st day of April, 1970, or any subsequent assessment year, is satisfied that any assessee--- (a) has furnished under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (5) of section 209A, or under sub-section (1) or sub-section (2) of section 212, an estimate of the advance tax payable by him which he knew or had reason to believe to be untrue." In our considered opinion, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mention of sub-section (a) under section 273(2) was to be viewed as a wrong statement of the section by the ITO and it has to be inferred that what he meant was sub-section (aa). He failed to note that the revised estimate filed in Form No. 29 on 5-3-1982 under section 209A(4) was false. The TDS Certificates filed clearly show that the major bulk of the contract amounts were received by the assessee as early as in December 1981 and that there was no contract amounts received in March 1982." The additional ground is admitted. The contention of the revenue is that misquoting of section will not affect the merits of the case. In our view, this is not a case of mis-quoting of section or sub-section. This is a case in which in the course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s any order by the Income-tax Officer calling upon the assessee to pay advance tax under section 210 and, therefore, the question of estimate under section 212 as mentioned in the notice cannot obviously arise. Therefore, no offence was made out against the assessee in the notice issued pursuant to the satisfaction reached by the Income-tax Officer in the course of the assessment proceedings in relation to an offence under section 273(2)(a) of the Income-tax Act, 1961. Thus, the notice itself suffers from incurable defect as the default mentioned therein was not at all applicable to the assessee. Unless the person to be realised is informed of the nature of the default committed by him and explanation sought for from him on that ground, ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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