9911796707
TMI Blog1991 (5) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax instalment of Rs. 7,075. Subsequently an estimate was filed showing total income of Rs. 1,76,133 and instalment of advance tax of Rs. 37,896 was further deposited on 14th Sep, 1981. The final revised estimate was filed on or about 12th Dec., 1981 showing total income of Rs. 2,18,041 and third instalment of advance tax of Rs. 74,555 was paid on 14th Dec., 1981. The return of income declaring total income of Rs. 3,53,014 was filed on 30th June, 1982, according to which the total tax payable works out to Rs. 2,10,107. The amount of prepaid taxes by way of advance tax and TDS was Rs. 1,23,009 and the balance tax payable under s. 140A amounted to Rs. 87,098. 2.1. The ITO levied penalty under s. 273(2)(aa) amounting to Rs. 4,585, which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis for levy of penalty. He also pointed out that the burden clearly lies on the Revenue to prove the existence of means rea before relying the penalty under s. 263(2)(aa). He also relied upon the judgment of Hon'ble Calcutta High Court in the case of CIT vs. Birla Cotton Spg. & Wvg Mills Ltd (1986) 54 CTR (Cal) 257; (1985) 155 ITR 448 (Cal) and judgment Hon'ble Punjab & Haryana High Court in the case CIT vs. Pratap Chand Maheshwari (1980) 14 CTR (P&H) 410; (1980) 124 ITR 653 (P&H). He urged that the penalty levied upon the appellant should be cancelled. 4. The ld. Deptl. Representative supported the orders of the learned departmental authorities. He contended that the Department is not required to establish the existance of guilty int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partnership firms had also furnished an estimate of advance tax payable by those firms. The share income shown by the assessee in the estimate of advance tax payable by those firms. The share income shown by the assessee in the estimate of advance tax furnished on 12th Dec., 1981 when compared with the share of income calculated as per such estimate of advance tax payable by the firms submitted in Dec. 1981 would be as under: As per the estimate by the assessee As per the estimate of the firm 1. M/s D.C. Engg. 1. M/s D.C. Engg. Estimated share 76,890 . Estimated share 76,890 . Estimated int. 8,984 85,874 Actual int. as perfinal A. O. 13,920 90,810 2. M/s Metal Products 2. M/s Metal Products Estimated share 1,19,140 . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shable on facts. In all those cases penalty had been levied for failure to file the estimate of advance tax payable by the assessee within the prescribed time. 5.2. in our view the estimate of advance tax furnished by the assessee in the month of Dec., 1981 was an honest estimate which was prepared in a bona fide manner on the basis of estimate of advance tax submitted by the two partnership firms, which were available with the assessee at that point of time, when he submitted the aforesaid estimate of advance tax. The knowledge that the estimate is untrue or one which the assessee believes to be untrue must be at the point of time when he submits the estimate. There is no evidence that at the material time (i.e. in Dec., 1981) the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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