TMI Blog1978 (3) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the estimate the assessee paid the first instalment of advance tax of Rs. 1,28,333 on the 1st September, 1968. The second instalment of the advance tax of Rs. 1,28,333 was also paid on the 2nd December, 1968. In the premises, both the first and second instalments of advance tax were paid within time. The assessee filed a revised estimate under section 212(2) of the Income-tax Act, 1961, on the 12th of March, 1969, estimating the advance tax payable by it for the year at Rs. 12, 10,000. The balance of advance tax payable for the year as per the revised estimate was Rs. 9,53,334 and the assessee paid the sum on the 15th March, 1969. On these facts, the Income-tax Officer charged interest of Rs. 17,531 under section 216 of the Act for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides or bona fides of the assessee. It was further submitted that the revised estimate of advance tax filed by the assessee for a higher amount was itself a positive proof of the assessee having under-estimated the advance tax payable by it and having thereby reduced the amount payable by it in the first and second instalments. It was further submitted that the finding that the assessee under-estimated the advance tax payable by it and thereby reduced the amount payable in the first and second instalments was implicit in the action of the Income-tax Officer in charging interest under section 216 and it was submitted that it was not necessary to record such a finding and no formal order was also necessary. After considering the rival content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how that the Income-tax Officer in fact had applied his mind and found, on the facts and circumstances of the case, that the assessee had underestimated the advance tax payable by it and thereby reduced the amount payable in either of the first two instalments. There was nothing on record to show in the present case that the Income-tax Officer before directing the assessee to pay interest under section 216 had applied his mind to the facts and circumstances of the case and had found that the assessee had under-estimated the advance tax payable by it and had thereby reduced the amount payable in either of the first two instalments. The Tribunal was unable to agree with the revenue that such a finding was implicit in the very action of callin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been passed not in accordance with the requirements of law, as understood by the Tribunal, was bad. We are not concerned with the propriety or validity of such a finding by the Tribunal. What we are concerned with in this case, is whether, after having held that the order imposing interest under section 216 of the Act was bad, the Tribunal, in the facts and in the circumstances of the case, was justified in sending the issue back to the income-tax Officer for consideration instead of annulling the order. The Tribunal has plenary powers as would be evident from the provisions of section 254 of the Income-tax Act, 1961. The section authorises the Tribunal to pass any order on the subject-matter of the appeal. The Tribunal has power to pass " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to levy interest under that section. Therefore, a finding that the assessee had falsely or deliberately under-estimated the estimate filed in order to avoid payment of advance tax had to be there before there was an imposition of penalty. Whether that is so or not again we are not concerned in this reference. The Tribunal has held that a finding under section 216 is necessary and has set aside the order. It is not clear as to whether the Tribunal has remanded the matter back to make a fresh finding or whether the Income-tax Officer has jurisdiction to make a finding afresh again, having not made that finding before. In this case, where there were disputes, firstly, whether the provisions of section 216 were at all attracted specially in o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer again for consideration. Counsel for the revenue drew our attention to the decision in the case of Smt. Bhagirathi Devi Jalan v. Commissioner of Income-tax [1978] 112 ITR 534 (Cal). There the court was concerned with the question when an authority exercises power pursuant to an order of remand by a Tribunal whether the period of limitation for passing this order would apply. This question is entirely different from the question posed before us. In the premises, we do not think that the observations made in that case are of any help in deciding the question referred in this instant reference. The question is, therefore, answered in the negative and in favour of the assessee. There will, however, be no order as to costs. SUDHINDRA ..... X X X X Extracts X X X X X X X X Extracts X X X X
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