TMI Blog1999 (11) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... timated the advance tax payable and had thereby reduced the amount payable in instalments for the assessment year 1975-76, S.L. Saraf J. answered the question in the negative and in favour of the assessee, and held that the Income-tax Officer had not exercised his discretion judicially nor had applied his mind and had failed to disclose any material to hold that the assessee had consciously underestimated its income and the advance tax payable thereon during the course of making assessment. In view of the difference of opinion between the two brother judges, the Chief Justice initially referred the matter to one of us. But pursuant to order dated August 14, 1997, passed by one of us, the Chief Justice has now referred the matter to the present Division Bench. We are now required to decide the point of law in accordance with section 259(2) of the Act. The facts as disclosed in the statement of the case drawn up by the Income-tax Appellate Tribunal, Guwahati Bench, and the annexures thereto briefly are that for the assessment year 1975-76, the Assessing Officer passed an order on January 24, 1981, under section 216 of the Act. In the said order, it was stated that the assessee-comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited [1993] 202 ITR 414, in which a Division Bench of this court has held that section 216 of the Act does not make it mandatory for the Assessing Officer to charge interest in all cases of underestimation of advance tax and the Assessing Officer may charge interest if the underestimation of advance tax was of such a nature and under such circumstances that it has to be regarded as devoid of bona fides. He also relied on the decision of this court in CIT v. Lankashi Tea and Seed Estate (P.) Ltd. [1996] 222 ITR 133, in which it has been held that underestimation of advance tax may be caused for various reasons and mere underestimation was not sufficient to bur den the assessee with interest under section 216 of the Act and it was the duty of the Assessing Officer or for that matter the appellate authorities to look into the facts of the case and see whether underestimation was made deliberately just to reduce the burden of tax. Mr. Goenka vehemently contended that in the instant case, sales of the assessee during the year 1973-74 up to August, 1973, was Rs. 78,00,579 and during the year 1974-75 up to August, 1974, was Rs. 93,82,000 and the differences of sale up to August, 1974, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether in the facts and circumstances of the case, the Tribunal had any material to hold that the assessee has underestimated the advance tax payable and thereby reduced the amount payable in instalments for the year relevant to assessment year 1975-76. According to Dr. Saraf, therefore, this court cannot go into the question as to whether the order of the Tribunal was perverse. He further argued that the question as to whether the order of the Tribunal was perverse or not cannot also be read into the question referred to this court by the Tribunal. In support of the aforesaid submissions, Dr. Saraf relied on the decision of the Supreme Court in A. Gasper v. CIT [1991] 192 ITR 382, wherein the Supreme Court has held that where the reference of a question was declined by the Tribunal, the said question cannot be read into one of the other questions referred. Dr. Saraf also relied on the decisions of the Supreme Court in Hooghly Trust (Pvt.) Ltd. v. CIT [1969] 73 ITR 685 and in Aluminium Corporation of India Ltd. v. CIT [1972] 86 ITR 11, in support of his argument that the High Court can only pronounce its opinion on a question referred to it and cannot sit as an appellate court fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. But, we are to examine in the present reference as to whether the Tribunal had any material to hold that the assessee has underestimated advance tax payable and thereby reduced the amount payable in instalments for the year relevant to the assessment year 1975-76. This is because, this question is different from the third question which has not been referred to us and this is again because this very question has been referred to us by the Tribunal under section 256(1) of the Act. For answering the question as to whether the Tribunal had any material to hold that the assessee has underestimated advance tax payable and thereby reduced the amount payable in instalments for the year relevant to the assessment year 1975-76, it is necessary to quote the relevant portion of the order of the Tribunal in which materials for the aforesaid finding have been discussed : "In the instant case before us, it is seen that the assessee had filed the first estimate on September 5, 1974, under section 212(1) which was based on the sale as noted by the Commissioner of Income-tax (Appeals) of the corresponding period ended August, 1973. As mentioned earlier, the sale up to the end of August, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsed and that of the Assessing Officer is restored..." On a reading of the aforesaid extract from the order of the Tribunal, it is clear that the Tribunal's finding that the assessee has underestimated advance tax payable and thereby reduced the amount payable in instalments for the year relevant to the assessment year 1975-76 was based only on the sales figures of the assessee during the year 1973-74 relevant to the assessment years 1974-75 and 1974-75 relevant to the assessment year 1975-76. The said sales figures of the assessee on which the Tribunal has relied on in its aforesaid order, are as follows : Sales figures of the assessee Up to August, 1973 Up to August, 1974 Difference 78,00,000 93,82,000 15,82,000 Up to December, 1973 Up to December, 1974 1,47,79,902 1,58,00,000 10,20,098 Up to March, 1974 Up to March, 1975 2,29,55,000 2,80,00,000 50,45,000 The aforesaid sales figures on which reliance was placed by the Tribunal in its order show that the sales of the assessee during the year 1974-75 up to August, 1974, exceeded the sales of the assessee during the year 1973-74 up to August, 1973, only by Rs. 15,82,000 and odd. The assessee returned an income of R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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