TMI Blog1993 (7) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... everal days of delay involved. We find that the delays are marginal in the sense on a few occasions the delay in making the payment ranged between 20 to 25 days. In one case it exceeded one month and in the month of August the delay involved was 2 months and 21 days. The assessee filed his explanation and pointed out that the assessee was getting the stock from its head office at Nagpur and the sales were effected at Bangalore thereafter. All the cheques collected at Bangalore were sent to the head office at Nagpur and there used to be delay in the process of realising the cheques and, therefore, there were some delays in the payments every month. 2.. The assessing authority had in fact found that at the time the assessment order had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isturb the finding of the appellate authority. However, it adopted a different formula to levy the penalty. The order of the Appellate Tribunal in this regard reads: "Considering the period of delay in payment of advance tax for each month as required under section 12-B(1) of the Act, we are of the view that calculation of penalty for default at the rate of one and one half per cent of the amount of tax per month for part of the month for the period of default for the first three months after the period of expiry of the time prescribed under section 12-B(1) of the Act and two and one half per cent of such amount for each month or part of the month subsequent to the first three months as aforesaid is considered to be reasonable." 4.. Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be exercised judicially and on a consideration of all the relevant circumstances'." It is now an accepted principle that levy of penalty is in the nature of a quasi-criminal proceeding and the power to levy penalty should be exercised only if the party concerned is proved to have acted in total disregard of the law and in this regard the conduct of assessee is quite relevant. When there is no finding that the defaulting party defaulted deliberately and the circumstances disclose that the assessee acted to the best of his capacity to comply with the provisions of the law, the penalty shall not be levied. Circumstances in each case has to be examined in the light of the principle enunciated in the decision of the Supreme Court in Hindus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al behaviour and conduct of the assessee shall have to be considered and the fact that the assessee had all along made substantial payments and the delays are only marginal should be taken note of. If the case of the petitioner is considered in the above manner it calls for levying some penalty because there was repetitive delays and this could be attributed to culpable negligence on the part of the assessee in not making any arrangement to have a bank account at Bangalore when he is trading in Bangalore. However, the quantum of penalty cannot be as high as the one directed to be levied by the Appellate Tribunal. This is a case where a nominal penalty would not only satisfy the requirement of law but would also serve as a warning to the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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