D.V. Junnarkar, Accountant Member -
(1.) THE assessee has filed this appeal against the order of the Commissioner (Appeals) confirming the penalty of Rs. 17,712 levied by the ITO under Section 273(c) of the Income-tax Act ('the Act').
(2.) In this case, the ITO had issued a notice under Section 210 of the Act for payment of advance tax, amounting to Rs. 17,532, and served it on the assessee on 17-8-1973. The assessee filed an estimate in Form No. 29, on 19-3-1974, estimating the income at Rs. 4,00,000 and tax payable thereon at Rs. 2,31,000. The assessee, however, paid advance taxes as under:
The assessee filed a return of income on 14-10-1974 declaring an income of Rs. 3,84,485. The tax payable thereon amounted to Rs. 2,31,726. The assessment was made on an income of Rs. 4,69,923 and the tax liability was finally determined, without adjustment of advance tax at Rs. 2,85,549. As, in the opinion of the ITO, the assessee had not complied with the provisions of Section 212(3A) of the Act, he initiated proceedings for levy of penalty under Section 273(c). In its reply dated 21-2-1977, the assessee objected to the levy of penalty, on the following three grounds :
1. Estimate of advance tax was filed on 16-3-1974.
2. Advance tax of Rs. 2,31,726 was paid before filing of return.
Maximum sales were effected during the last two months of the year and the profit was realised only after the year ended. The assessee could not, therefore, file estimate and pay advance tax in time.
The ITO, however, found that the assessee in its reply had stated that the estimate of advance tax was filed on 16-3-1974, whereas the actual estimate, on record, showed that it was filed on 19-3-1974. Since this estimate was not within the time prescribed under Section 212(3A) and since the advance tax, amounting to Rs. 1,82,968, was also not paid, within the time limit under Section 212(3A), and since the assessee had not adduced any evidence to show that the substantial profits were earned during the last two months, the ITO proceeded to levy the penalty which was, roughly, the minimum payable under the Act.
3. Having failed before the Commissioner (Appeals), the assessee has filed the present appeal before the Tribunal. During the course of the arguments, the learned counsel for the assessee traced the assessee's conduct with reference to the requirements of Section 212(3A). He admitted that the estimate was filed on 19-3-1974 which was beyond the statutory date of 15-3-1974. The learned counsel proceeded to argue that though the estimate was admittedly delayed, it was nonetheless an estimate. According to him, under Section 273(c), what was punishable was failure to furnish an estimate, i.e., non-submission of an estimate. The belated submission of the estimate was not punishable. In this connection, he invited our attention to the observations of the learned Judges of the Gujarat High Court in the case of CIT v. Kohinoor Flour Mills  99 ITR 54 to the effect that, belated payment of tax was, nonetheless, payment of advance tax. Hence, in this connection, reference was made to another Gujarat High Court decision, in the case of Bharat Textile Works v. ITO  114 ITR 28 and one more Gujarat High Court decision, in the case of Chandrakant Damodardas v. ITO  123 ITR 748 and finally to the Bombay High Court decision, in the case of CIT v. Traub India (P.) Ltd.  118 ITR 525. It was the case of the learned counsel for the assessee that the assessee has not failed to file the estimate. All that the assessee has failed to do was to file the estimate in time.
(3.) ON behalf of the revenue, the learned departmental representative has objected to the maintainability of the appeal. According to him, since in the instant case the assessee had approached the Commissioner (Appeals) under Section 273A for waiver of the penalty under consideration and since the Commissioner by his order, dated 27-1-1978, had dismissed the assessee's application in this respect, the assessee was not competent for filing an appeal against the order of the ITO before the Commissioner (Appeals). According to him, the Commissioner (Appeals) had erred in entertaining the appeal filed by the assessee and dealing with it on merits. ON merits, the learned departmental representative has proceeded to argue that the assessee was aware that its income was higher than the amount on the basis of which tax was demanded from it under Section 210. Further he has relied on the Appellate Tribunal, Bombay Bench B's decision in IT Appeal No. 3953 (Bom.)/1974-75 decided on 4-12-1975 wherein it has been held that a belated estimate was not an estimate under Section 212 (3A). Further, he has proceeded to distinguish the High Court decisions relied upon by the learned counsel for the assessee.;