AJIT K.SENGUPTA,J. - (1.) IN this reference made at the instance of the assessee, the following questions have been referred by the Tribunal for the opinion of this Court under s. 256(2) of the IT Act, 1961 ('the Act'): " 1. Whether, on the facts and in the circumstances of the case, the penalty proceeding initiated under s. 273 of the IT Act, 1961 on the basis of the original assessment was valid in law? 2. Whether, on the facts, and in the circumstances of the case, there was any material before the Tribunal justifying the reversing of the order of the CIT (A) and/or the said conclusion is unreasonable and perverse ?" The facts as found by the tribunal are as under: This reference relates to the income-tax assessment of the assessee-company for the asst. yr. 1984-85. For the asst. yr. 1984-85, the assessee-company did neither file any estimate of its current income nor did it pay the advance tax payable by it on the current income as required by cl. (b ) of sub-s. (1) of s. 209 A of the Act. In response to the show-cause notice, the assessee- company did not furnish any explanation for its failure as aforesaid. Inspite of another opportunity being granted by the ITO the assessee-company gave no explanation for its failure to file an estimate of its current income and pay the advance tax payable by it on the current income calculated in the manner laid down in s. 209A. The ITO, accordingly, levied a penalty of Rs.32,240 under s. 273(2)(b) of the Act. The assessee, being dissatisfied, carried the matter in appeal before the CIT (A). It was submitted before the CIT (A) that the assessee was not properly advised by the previous tax consultant. After a new tax adviser was appointed, the assessee filed a revised return for the year under reference declaring an income of Rs.20,70,130 in March 1987 and paid tax of Rs.10,30,951. The CIT (A) cancelled the said penalty following the decision of the Orrisa High Court in CWT vs. Ramniklal D. Mehta (1982) 28 CTR (Ori) 69 : (1982) 136 ITR 729 (Ori).
(2.) ON appeal by the Revenue, the Tribunal found that the decision of the Orrisa High Court referred to by the CIT (A) was clearly distinguishable. The failure on the part of the previous tax consultant to advise the assessee properly could not be accepted as a reasonable cause for non-filing of estimate particularly when no explanation whatsoever was rendered by the assessee before the ITO and no supporting details and/or evidence were produced by it before the CIT (A) in support of its submission that it was not properly advised by the previous tax consultant. The Tribunal, therefore, reversed the order of the CIT (A) and restored the penalty order passed by the ITO. In Ramniklal D. Mehta's case (supra), the WTO levied penalty for failure to file the wealth-tax returns. The Tribunal found that the assessee was regularly filing its income-tax returns and there was no reason as to why the assessee should have avoided filing of wealth-tax returns. Had he, in fact, been advised to do so, he could not have hoped to conceal the particulars of wealth from the Department because they were already on the Departmental records. The Tribunal noted that it was not concerned with the question as to how and why the adviser of the assessee failed to advise the assessee regarding the filing of the returns voluntarily. The Tribunal observed that the assessee did not, in fact, get any such advice from his tax adviser to file the wealth-tax returns and this explanation given by the assessee was regarded as satisfactory by the tribunal. This decision of the Tribunal was upheld by the Orissa High Court on reference by the Revenue.
(3.) THE facts of the present case before us are quite peculiar. The assessee admittedly filed revised return showing income of Rs.20,79,130. It is a case of a corporate assessee. This is not the first year of business. The company did not pay any advance tax notwithstanding the clear provisions of s. 209A(1)(b). No explanation whatsoever was furnished before the ITO in response to the show- cause notice as to why penalty should not be levied in this case for failure to file the estimate of current income and to pay advance tax. Even when another opportunity was given by the ITO, the assessee did not come forward to offer any explanation. Before the CIT (A), the assessee for the first time orally claimed that the previous tax consultant did not advise the assessee properly. The name of the previous tax consultant was not disclosed. No affidavit and/or any other evidence was filed to show that the previous Tax Consultant did not advise the assessee as to its obligation to file estimate of advance tax and pay advance tax notwithstanding that it had substantial income of over Rs.20 lakhs. The oral explanation given by the assessee to the ITO was believed by the CIT (A). The decision of the Orissa High Court is, therefore, clearly distinguishable. Nothing has been shown to us as to how the decision of the Tribunal is unreasonable and/or perverse. Every assessee is under a statutory obligation to estimate its current income and pay advance tax in accordance with the provisions of s. 209A(1)(b). If the statutory obligation to this effect is not complied with, s. 273(2)(b) requires the AO to levy penalty unless the failure to furnish the estimate was on account of any reasonable cause. Nothing has been shown as to what was the reasonable cause for the assessee's failure to file the estimate as required by cl. (b) of sub-s. (1) of s. 209A.;