TMI Blog1980 (8) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... not be made? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in cancelling the penalty levied under section 273(a) ? The assessee is a private limited company engaged in the business of passenger transport. During the financial year 1967-68, relevant to the assessment year 1968-69, the assessee was called upon to pay advance tax in the sum of Rs. 14,467 by a notice dated June 30, 1967, issued under s. 210 of the I.T. Act (hereinafter called " the Act "), on the basis of the provisional assessment for the year 1966-67. Later on, the ITO framed an assessment for the year 1966-67 at Rs. 1,77,954 and on that basis he amended the notice under s. 210 of the Act calling upon the assessee to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the basis of a regular assessment for the same year. This is so because of the words ........ or regular assessment or a provisional assessment under section 141 of the assessee ...... is made in respect of the previous year later than that referred to in the order of the Income-tax Officer ........ used in section 210(3). The second notice based on the regular assessment for the assessment year 1966-67 was, therefore, a bad notice in law and the notice on the basis of which the assessee could be legally required to pay advance tax was the original notice according to which payment of Rs. 14,467 was due. The assessee did file an estimate on January 24, 1968, but this estimate is meaningless because what was done in this estimate was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee under section 140A or a regular assessment of the assessee (or of the registered firm of which he is a partner) is made in respect of a previous year later than that referred to in the order of the Income-tax Officer, the Income-tax Officer may make an amended order requiring the assessee to pay in one instalment on the specified date or in equal instalments on the specified dates, if more than one, falling after the date of the amended order, the advance tax computed on the basis of the total income on which tax has been paid under section 140A or in respect of which the regular assessment aforesaid has been made as reduced by the amount, if any, paid in accordance with the original order." He has argued that s. 210(1) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of the total income on which tax has been paid under s. 140A of the Act on estimate basis. These two provisions give a clear indication that it is within the jurisdiction of the ITO to rely upon the estimated income for the previous year for giving a notice to the assessee for the payment of advance tax under s. 210 of the Act. The contingency noticed in sub-s. (3) of s. 210 regarding the revision of the notice comes into play only if the regular assessment for any of the earlier years than the one regarding the estimated income of which a notice is issued for the current year, is framed creating higher liability to tax. We are accordingly of the view that the observations made by the learned Tribunal are in accord with law. If t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the first notice served by the ITO on the assessee, which was based on estimate basis, were held to be legally valid even then the argument advanced by him would be tenable or not. The learned counsel did not give a direct reply to this question. This implies that if the first notice is valid, it is not open to the revenue to complain that the assessee has not paid the proper advance tax only on the ground that the assessment for the year relating to the notice on estimate basis itself has been modified in the same year. We are accordingly of the view that the notice dated June 30, 1967, issued by the ITO to the assessee was valid and in accordance with law. There was no legal basis for the ITO to amend this notice and since the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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