TMI Blog1981 (11) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, 1975was originally filed by the assessee on31st July, 1977declaring an income of Rs. 82,730. Later on a revised return was filed on30th Jan, 1979, wherein the income returned was share in three registered firms. The assessee made a deposit of Rs. 1,300 on15th Dec., 1975based on the estimated income of Rs.30,000 in respect of the asst. yr. 1974-75. The ITO found that on the basis of the current income, the amount of compulsory deposit payable by the assessee was sum of Rs. 4,360. Before the ITO the assessee could not produce the receipt for the payment of a sum of Rs. 1,300 on15th Dec,1975. The ITO, therefore, imposed a penalty of Rs. 1,090 calculated at 25 Per cent on the amount of compulsory deposit of Rs.4,360, vide his order u/s 10 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the share income from these firms upto15th Dec., 1975which was the last date for making compulsory deposit. It was pointed out that the share income from the firms could be obtained by the assessee long after15th Dec., 1975and it was then only that the assessee could file the original return of income on31st Jan., 1977. The assessee s contention was that placed in this situation, he could estimate the income on which compulsory deposit was to be made only on the basis of the last returned income for the asst. yr.1974-75 for which the return was filed on 31st Jan., 1975 declaring an income of Rs.28,866. It was pleaded that in those, circumstances, the shortfall in the amount of compulsory deposit paid by the assessee was covered by a reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Compulsory Deposit act; "2. We have consistently taken the view that penalty is not automatic. The statute provides for an opportunity u/s 10(3). Such opportunity becomes meaningless if penalty is to be levied whatever the explanation. The only further question, therefore, is whether the penalty was exigible in the facts and circumstances of the case. Time for payment was available upto15th March, 1975in respect of some other class of tax payers and even upto31st March, 1975for still another class. Under these circumstances, we are not in a position to say that the assessee s alleged belief is an after-thought. As long as there is no material to indicate that it is an after-thought, we are of the view that the Income-tax Officer should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in a position to obtain the share reports from the said firms and in these circumstances, it was not possible for him to correctly estimate the current year s income and therefore, the estimate of income for the purposes of making a compulsory deposit was on the basis of the income returned in respect of the asst. yr. 1974-75, for which the return was filed on 31st Jan, 1975. According to the assessee even the return of income in respect of the subsequent asst. yr. i.e. 1975-76 was filed on29th May, 1976i.e. long after15th Dec, 1975which was the last day for making the compulsory deposit. In our opinion, there is force in the contention of the ld. counsel of the assessee. A correct estimate of the current years income by a partner of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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