TMI Blog1983 (11) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... it is an ad hoc payment. The order itself does not say why such a conclusion was arrived at. However, it appears that it was the stand of the ITO that the assessee was not bound to file an estimate of advance tax in Form No. 28A under section 209A of the Act, while it had filed such an estimate in Form No. 29 on 13-6-1979 notwithstanding that the assessee had only suffered loss in earlier years and the last completed assessment for the assessment year 1976-77 was also on a loss. The assessee was under the impression that in such circumstance estimate has to be made in Form No. 29 and it, accordingly, submitted an estimate on an income at Rs. 2 lakhs and tax payable at Rs. 1,18,250 on 13-6-1979 in Form No. 29. He raised the estimate to Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 209A so as to necessitate use of Form No. 28A. In his opinion, it was a voluntary payment of advance tax. Such payment has all the characteristics of advance tax notwithstanding the fact that the assessee was not obliged to make it. It was advance tax for the simple reason that it was paid in advance during the financial year preceding the assessment year. He characterised the attitude of the authorities as ' a travesty of justice to ignore the payments ' and to levy interest on amounts already lying with the revenue as though it was outstanding. Since interest under section 139 is chargeable only on net tax, he allowed the appeal on this point. 4. In the departmental appeal, the stand before the first appellate authority is repea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the right form and in case a wrong form had been issued, the effect of use of such wrong form has to be considered. We are of the view that even the issue as to what constitutes a correct form should not be so material. The forms in these essential particulars are similar and provide for estimate of income under various heads and tax payable thereon. The use of one form for the other, when there is some doubt in the mind of the taxpayer as to the correct form, could not make an advance tax payment into an ' ad hoc payment ', especially when all the forms in essential particulars are found by us to be materially the same. The funds were paid during the financial year. The amounts payable and actually paid were the same as would have been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee need not depend upon the rationale of these decisions, as its facts are even stranger. It is not the ITO's case here that the payments were not made on due dates. The only complaint is that a different form should have been used for the estimate. If we were to accept the department's contention, we will be upholding the levy of interest on amounts not outstanding but lying with the Government. Besides, the ITO never pointed out to the assessee on any of the three occasions when Form No. 29 were filed that the correct form in his opinion is Form No. 28 and that in absence of correct form, the payments will be ignored. The challans used were advance tax challans and were credited to the Government account as such as per description in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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