TMI Blog1995 (10) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 255(4) has been made to the Hon'ble President I.T.A.T., being ITA No. 4710/Ahd/89?" 2. This appeal filed by the assessee is against the order of the CIT(A) dated 16-3-1989 for the assessment year 1983-84. 3. The assessee is a partnership doing whole-sale business in groundnut oil, vegetable oil, soyabeen, grease, yarn and wheat etc. Return of income was filed on 4-7-1983 showing total income of Rs. 54,915. The assessment was completed under section 143(3) by an assessment order dated 6-1-1986. In the said assessment order an addition of Rs. 1,28,100 was made towards alleged purchase of 600 tins of oil and profit on the same on the ground that they were sold outside the books of account. Certain disallowances were also mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we could not be held having defaulted in making proper payment and filing incorrect estimate of income. The notice may be cancelled." 5. The Assessing Officer did not agree with the explanation of the assessee. According to him, for the levy of penalty under section 273(a) only assessed tax is to be considered. He opined that the addition in the returned income was based on documents and evidence found during the course of search operation under section 132 on 20-1-1984 and that the addition was not on flimsy ground and that the addition had been discussed in the assessment order and after making proper investigation that addition was made. Accordingly, he observed that he was satisfied that the assessee had committed a default under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8,100 at the time of filing of the estimate of advance tax and accordingly, levy of penalty under section 273(2)(aa) was fully justified. 8. At the time of hearing of the appeal before me, the assessee's counsel filed photostat copies of notice under section 274 read with section 273 of the I.T. Act, 1961 dated 6-1-1986 and urged that the addition of Rs. 1,28,100 and disallowance of Rs. 12,055 were not anticipated at the time of filing of the estimate for Rs. 1,00,000 and that the assessee cannot be held to have filed untrue estimate. Addition has been made under the deeming provision viz. section 69 of the I.T. Act, 1961. Deemed income is not supposed to be shown in the estimate of advance tax. 9. The Departmental Representative conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be untrue. In the present case, the assessee has not filed any estimate of advance tax under section 212(3A). Hence, the Assessing Officer cannot charge the assessee that it had filed untrue estimate under section 212(3A). Yet the Assessing Officer has given the heading for his penalty order dated 10-3-1986 as "order under section 273(2)(aa) of the I.T. Act, 1961". However, in the body of the penalty order, he categorically mentioned that the assessee had committed a default under section 273(a) of the I.T. Act, 1961. So it has to be taken that the Assessing Officer has levied the penalty only under section 273(a). As held by the Hon'ble Calcutta High Court in the case of CIT v. Birla Cotton Spg. Wvg. Mills Ltd. [1985] 155 ITR 448, mere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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