TMI Blog1975 (7) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... rst instalment on 16th September, 1951. On 15th December, 1951, it filed an estimate disclosing its total income at Rs. 7 lakhs, at which tax payable worked out to Rs. 2,76,790. When the assessment for the year in question, namely, 1952-53, came to be made, the Income-tax Officer worked out a total income of Rs. 12,66,455 as against the estimated income of Rs. 7 lakhs submitted by the assessee. The Income-tax Officer being of the opinion that, the assessee had furnished the estimate of the tax payable by it which it knew or had reason to believe to be untrue served a notice upon the assessee under section 28(1)(c) read with section 18A(9) of the Act. The assessee contended that the additions made to its returned income consisted of two item ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 28(1)(c) of the Act. It held that penalty under section 18A(9) could not be upheld when penalty under section 28(1)(c) had been set aside. There was, however, a reference [Income-tax Reference No. 717 of 1972, decided on 17th September, 1974--Commissioner of Income-tax v. U. P. Tannery Co. [1977] 107 ITR 655 (All)] at the instance of the department against the order of the Tribunal cancelling the penalty under section 28(1)(c). The reference came up before a Division Bench of this court. It was reiterated before the Bench that the sum of Rs. 4,96,868 could not be included in the return because of the complicated system of accounting followed by the assessee. According to the assessee, the goods used to be sent on consignment basis to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel has not been able to show any extenuating circumstance. It is true that the payment of advance tax under section 18A(2) is based upon an estimate of the income and the estimate may not always be correct, but, in the instant case, we find that so far as the sum of Rs. 4,96,868 is concerned, the assessee had received the last payment on 3rd October, 1951, while it filed the estimate two months later in December, 1951. There was thus no element of chance or estimate. He knew the exact figure long before he filed the estimate. He could have easily included this amount in its estimate. The failure of the assessee to do so was definitely deliberate, as has been held by the Division Bench in ITR No. 717 of 1972 [Commissioner of Income-tax v. U ..... X X X X Extracts X X X X X X X X Extracts X X X X
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