TMI Blog1977 (1) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner of Income-tax, Madras (Central), Madras, at whose instance the above question was referred, filed T.C.P. No. 56 of 1975 on the file of this court and by an order dated October 27, 1975, this court directed the Tribunal to refer the following question also: " Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that no penalty under section 271(1)(a) was leviable on the assessee as no tax was due from it on the date of imposition of penalty ? " This question is covered by Tax Case No. 191 of 1977. The facts lie within a very short compass. The matter relates to the assessment year 1964-65. The accounting year of the assessee ended on March 31, 1964. The return of income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee preferred an appeal to the Income-tax Appellate Tribunal. The Income-tax Appellate Tribunal, purporting to follow the judgment of the Supreme Court in Commissioner of Income-tax v. Vegetable Products Ltd. [1973] 88 ITR 192 (SC), held that no penalty was leviable in the present case, since as on the date of the order of penalty, viz., July 29, 1970, no tax was payable by the assessee. It is the correctness of this conclusion that is challenged in the form of the question covered by Tax Case No. 191 of 1977. The question covered by Tax Case No. 389 of 1974, as we have pointed out already, has become academic for the reasons to be indicated later in the course of this judgment. Even if the Tribunal is correct in its understanding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II-B or paid in advance under. Chapter XVII-C". Thus, as a result of the amendment, it is made clear that the penalty has to be calculated on the basis of the tax assessed irrespective of the fact whether the tax was due and outstanding on the date when the order imposing penalty was made or not. In view of this amendment with retrospective effect, the question referred to this court in Tax Case No. 191 of 1977 has to be answered in the negative and against the assessee, and it is answered accordingly. However, the learned counsel for the assessee contended that, even after the amendment, the position remained the same as far as the present assessee is concerned, because the present assessee is a registered firm and the penalty has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said unregistered firm on the income so computed, and calculate two per cent. of the tax so assessed for each month as the penalty. The use of the words "the same amount" occurring in section 271(2) makes it clear that the section was concerned only with the quantification of the amount of penalty, and it has nothing to do with the liability to pay as such. In view of this we are of the opinion that the contention of the learned counsel for the assessee that, notwithstanding the amendment to section 271(1), no penalty can be imposed on the assessee is without substance. Since the Tribunal has held that no penalty as such was imposable on the assessee herein, it did not go into the quantum of the penalty. The question covered by Tax Cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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