TMI Blog1983 (11) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... f the ITO that the assessee was bound to file an estimate of advance-tax in Form No. 28A u/s 209A, while it had filed such an estimate in Form No. 29, on 13th Jun., 1979 notwithstanding the assessee had only suffered loss in earlier years and the last completed assessment for asst. yr. 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. two lakhs and tax payable at Rs. 12 lakhs tax to be paid of Rs. 1,18,250 on 13th Jun., 1979 in Form No. 29, He raised the estimate to Rs. 7,09,500 on 13th Sept., 1979 again in Form No. 29. He further made an upward revision again in self-same Form No. 29 on 14th Feb., 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct that the assessee was not obliged to make it. was advance-tax for the simple reason that it was paid in advance during he 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 Revenue as though it was outstanding. Since interest u/s 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 repeated. It is claimed that Form No. 28A has to be filed in pursuance of assessee s liability u/s 209(1) and (4) and that failure to file such a form makes the payment "ad hoc" and that it is not advance-tax. Once th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me under various head 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 he financial year. The amounts payable and actually paid were the same as would have been payable under the Form (No. 28A) preferred by Revenue. Interest u/s 139(8) is chargeable with reference to the tax that is payable "as reduced by the advance-tax", if any, paid, and any tax deducted at source. Hence, what is relevant is the payment of advance tax. If such payment is received accompanied by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be upholding the levy of interest on amounts not outstanding but lying with the Government. Besides, 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 payment will be ignored. The challans used were advance-tax challans and were credited to Government account as such as per description in the challan. If the receipt is characterised as advance-tax receipt in challan and in Government accounting, we do not see how it could be treated as otherwise for purpose of levy of interest. We find that there is substantial compliance on the part of the assessee with the requirements of s. 209A in the view tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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