Commissioner of Income Tax vs Gemini Pictures Circuit (P.) Ltd.

Thanikkachalam, J.—In accordance with the provision contained in section 256(1) of the Income Tax Act, 1961 (hereinafter referred to as

the Act""), at the instance of the Revenue, the Tribunal referred the following question for our opinion :

Whether, on the facts and in the circumstances of the case and having regard to the provisions of chapter XVII-C of the Income Tax Act, the

Appellate Tribunal was correct in holding that the payment of Rs. 3,20,000 made on March 30,1968, in pursuance of an invalid estimate should be

taken into account for the purpose of computing the penalty u/s 273(a) of the Income Tax Act, 1961, for the assessment year 1968-69 ?

The Income Tax Officer demanded advance tax of Rs. 3,38,711 for the assessment year 1968-69 u/s 210 of the Income Tax Act, 1961. The

assessee filed an estimate on june 14, 1967, in which he estimated the tax at Rs. 17,550. The assessee filed another estimate on march 30, 1968,

estimating the tax at Rs. 6,32,500. The Income Tax Officer pointed out that the latter estimate was invalid, having been filed beyond March 15,

1968. The Income Tax Officer initiated penalty proceedings u/s 274 read with section 273(a) of the Act and issued a notice. The assessee filed a

reply dated February 1, 1974, stating that as per he revised estimate, the income was shown at Rs. 11,50,500, that the tax thereon amounted to

Rs. 6,32,500 and that the same was paid before November 4, 1968. It was further stated that the tax as above was paid as advance tax and the

same should not be ignored. The Income Tax Officer pointed out that payment of tax made in accordance with the valid estimate alone would be

taken as advance tax, that the payment made on the basis of the estimate dated March 30,1968, could not be taken as advance tax and that,

therefore, the valid estimate sent on June 14, 1967, was an underestimate. The Income Tax Officer computed the shortfall at Rs. 3,21,161 and

imposed a penalty of Rs. 32,116 u/s 273(a) of the Act. On appeal, it was argued before the Appellate Assistant commissioner that the Income

Tax Officer should have taken into account the sum of Rs. 3,33,161, paid as advance tax by the assessee during the previous financial year

immediately preceding the assessment year and if that were to be done, the shortfall would work out to Rs. 5,550 and no penalty could be

imposed u/s 273(a) of the Act. It was further contended that the revised estimate sent by the assessee on march 30, 1968, was valid and that since

the advance tax of Rs. 6,32,500 was shown as due according to the revised estimate which did not fall short of 75% of the assessed tax, namely,

Rs. 6,14,906, as determined by the Income Tax officer, no penalty could be imposed. The Appellate Assistant Commissioner accepted the

assessee''s contention and held that the penalty should be quantified by taking the shortfall at Rs. 5,550 as the basis. Accordingly, the Appellate

Assistant Commissioner reduced the penalty from Rs. 32,116 to Rs. 555.

The Revenue filed an appeal before the Tribunal against the said order of the Appellate Assistant Commissioner. The learned Accountant

Member, relying on the decision in the case of A.K. Bashu Sahib Vs. First Income Tax Officer, Vellore, , set aside the order passed by the

Appellate Assistant commissioner and restred the order passes by the Income Tax Officer and thereby allowed the departmental appeal. On the

other hand, the learned judicial member by distinguishing the judgment of the Madras High Court in A.K. Bashu Sahib Vs. First Income Tax

Officer, Vellore, on facts and following the decision of the Gujarat High Court in the case of Commissioner of Income Tax, Gujrat Vs. Kohinoor

Flour Mills, , confirmed the order passed by the Appellate Assistant Commissioner and dismissed the departmental appeal. The matter was

referred to a third member, who agreed with the learned judicial member. Thus, in accordance with the majority view, the Tribunal passed an

order accepting the case of the assessee, confirmed the order passed by the Appellate Assistant Commissioner and dismissed the appeal filed by

the Department.

Learned standing counsel for the Department contended before use that the tax paid by the assessee on Mach 30, 1968, in pursuance of the

invalid estimate cannot be considered to be advance tax paid under the provisions of Chapter XVII-C of the Act. It was pointed out that the

advance tax paid was only Rs. 17,550 and the excess payment made in pursuance of the invalid estimate cannot be treated as advance tax.

According to learned standing counsel, the payment of Rs. 3,20,000 made on March 30, 1968, could not be held as advance tax paid under

Chapter XVII-C of the Act since that amount was paid on an invalid estimate filed on March 30,1968.

Learned standing counsel pointed out that, if the amount paid on the invalid estimate is ignored, then there is a shortfall of Rs. 3,21,161 and,

therefore, the penalty is exigible u/s 273(a). Learned standing counsel further pointed out that the fact that in the assessment proceedings,. the

Department accepted the payment made on the invalid estimate as advance tax paid within the end of the financial year would not mean that the

said payment should also be accepted as advance tax paid under Chapter XVII-C. Learned standing counsel submitted that, if this interpretation is

accepted as the correct interpretation, then the very purpose for which section 273(a) was introduced would get frustrated. It was, therefore,

pleaded that the Tribunal was not correct in upholding the order of the Appellate Assistant Commissioner.

On the other hand, learned counsel appearing for the assessee submitted that the assessee filed a revised estimate on march 30, 1968, and the

income was shown as Rs. 11,50,500, on which the tax amounting to Rs. 6,32,500 was paid and, therefore, this should not be ignored before

imposing the penalty u/s 273(a). It was further submitted that if this amount of Rs. 3,33,161 paid on the basis of the revised estimate was taken

into account as advance tax paid by the assessee during the financial year immediately preceding the assessment year under consideration, then the

shortfall would be only Rs. 5,550. Learned counsel pointed out that the revised estimate filed by the assessee on March 30, 1968, was a valid

estimate and that since the advance tax of Rs. 6,32,500 shown as due according to the revised estimate did not fall short of 75% of the assessed

tax, viz., Rs. 6,14,906, as determined by the Income Tax Officer, no penalty could be imposed. Learned counsel finally contended that when the

payment was treated as advance tax in the assessment proceedings, it is not open to the Department to treat the said payment as not made under

the provisions of Chapter XVII-C in the penalty proceedings. It was, therefore, pleaded that the Tribunal was correct in confirming the order

passed by the Appellate Assistant Commissioner.

We have heard the rival submissions. The question that arises for consideration in this reference is whether the payment of Rs. 3,20,000 made

on March 30, 1968, should also be taken into account as tax actually paid within the meaning of section 273(a)(i) of the Act. The materials on

record show that the assessee had actually paid a sum of Rs. 3,33,161 during the financial year immediately preceding the assessment year under

consideration. The point is whether the above payment can be taken as actually paid under the provisions of Chapter XVII-C. According to the

assessee, it was under the bona fide impression and belief of that the payment made by it on March 30, 1968, was made as advance tax payment

in pursuance of a revised estimate filed. The payment was also accepted by the Income Tax Officer in the assessment proceedings as advance tax

paid as contemplated u/s 219. Therefore, the further question is whether the Department having accepted the payment as advance tax paid in the

assessment proceedings, it is open tot he Department to ignore the said payment and treat it as payment not made under the provisions of Chapter

XVII-C in the penalty proceedings.

From a reading of the relevant provisions of Section 273(a)(i) of the Act, it is clear that the penalty u/s 273(a) of the Act could be imposed only

on the amount by which the tax actually paid during the financial year immediately preceding the assessment year falls short of 75% of the assessed

tax or when a notice u/s 210 of the Act was issued to the assessee for the amount payable thereunder. Therefore, if the Income Tax Officer, in the

course of any proceedings in connection with the regular assessment for any assessment year, is satisfied that any assessee has furnished under

clause (a) of sub-section (1) of section 209, a statement of the advance tax payable by him which he knew or had reason to believe to be nature,

he can levy penalty. The burden of proving that an estimate of advance tax submitted by an assessee was false to his knowledge or believed by him

to be inaccurate is on the Department. According to the Income Tax Officer in the present case, the payment made in accordance with the valid

estimate filed on June 14, 1967, alone could be taken as advance tax and, therefore, the valid estimate sent on June 14, 1967, is an underestimate.

There is nothing in section 273 which empowers the Income Tax Officer to penalise an assessee for not furnishing a revised estimate. Penalty under

that provision can be imposed only if the estimate already furnished by the assessee is found to be untrue and the Income Tax Officer is satisfied

that when furnishing it, the assessee knew or had reason to believe that it was untrue. But the materials on record show that the Income Tax Officer

has not recorded his satisfaction with regard to the fact that the assessee knew or had reason to believe that the estimate filed by the assessee was

untrue. From the bare fact that there was disparity between the original estimate and the revised estimate filed by the assessee, no inference can be

drawn that the assessee had reason to believe the original estimate to be untrue. Therefore, even on that score, we are of the opinion that the

tribunal was correct in upholding the order of the Appellate Assistant Commissioner.

Now let us consider the decision cited by both the parties,. The first decision brought to our notice was that in the case of A.K. Bashu Sahib

Vs. First Income Tax Officer, Vellore, . That was a case where the assessee did not submit any estimate of income in the prescribed form within

the prescribed time. On these facts this court held that the assessee was not entitled to pay the first installment of the advance tax demanded in

accordance with the estimate filed by him belatedly. In the present case, the assessee had filed an estimate of advance tax originally and he sought

to file a revised estimate, which estimate and the payment of tax in pursuance thereof were accepted by the Department as pertaining to advance

tax payment. Therefore, the decision in A.K. Bashu Sahib Vs. First Income Tax Officer, Vellore, will not be applicable to the facts of the present

case.

In this connection, another decision cited before us was that in the case of Commissioner of Income Tax Vs. T.T. Investments and Trades Pvt.

Ltd., and while deciding the question relating to the interest payable to the assessee u/s 214 on excess payment, this court had occasion to

consider whether any payment made before the end of the accounting year for which the assessment is made should be taken as advance tax. In

that case, this court held that (at p. 351) ""when once the payment of the tax paid as advance tax is accepted, the payment cannot be said to be not

towards advance tax. Any payment made before the end of accounting year for which the assessment has been made should be taken to be an

advance tax.

In a similar situation in Additional Commissioner of Income Tax Vs. Chitra Sagar, , this court has specifically held that so long as the amount of

advance tax is paid, though belatedly, but within the end of the accounting year, it will have to be taken as advance tax for the purpose of section

214 of the Act as, otherwise, credit cannot be given to that sum at the stage of the assessment u/s 214.

Similar view wa also taken by the Gujarat High Court in the case of Chandrakant Damodardas Vs. Income Tax Officer Ward, ""A

(Company), Rajkot, . In this decision, the Gujarat High Court explained the circumstances under which the deicsion in the case of Bharat Textile

Works and Others Vs. Income Tax Officer Circle-IV, 3-A, (Company), Ahmedabad and Others, , was rendered. While rendering the decision in

Commissioner of Income Tax Vs. T.T. Investments and Trades Pvt. Ltd., , this court followed various judgments rendered in the case of CIT v.

Kohinoor flour Mills [19785] 99 ITR 54 , in the case of Santha S. Shenoy, A.S. Suresh, A.S. Sasidhara Shenoy, A.S. Narayana Shenoy,

Sobhana V. Shenoy, A.V. Gopalakrishna Shenoy and A. Sethumadhavan Vs. Union of India (UOI) and Others, , in case of Commissioner of

Income Tax, Bombay City-V Vs. Traub (India) P. Ltd., , in the case of Commissioner of Income Tax Vs. Jagannath Narayan Kutumbik Trust,

and in the case of Chandrakant Damodardas Vs. Income Tax Officer Ward, ""A"" (Company), Rajkot, .

Another decision relied on before us was that reported in the case of CIT v. Vijayanthimala [1977] 108 ITR 882 . According to the facts

appearing in that decision the amount was due and payable on September 1, 1968, the amount was paid only October 8, 1968, and hence it was

held that the assessee was liable to pay penalty u/s 221(1) of the Act. Therefore, the facts appearing in that decision are different from the facts

appearing in the present case. hence, that decision will not be applicable to the facts of the present case.

Reliance was also placed on a decision reported in the case of M. Ct. Muthiah and Another Vs. Deputy Controller of Estate Duty, Southern

Zone, . According to the facts appearing in that case, the assessee neither field an estimate not paid the tax in accordance with the provisions of

section 18A(3) of the Indian Income-=tax Act, 1922. The contention of the assessee was that he is a person to whom sub-section (8) applies and

in his case since he has not paid tax at all, it is not possible to calculate interest in the manner laid down in sub-section (6). While deciding the

question arising in this case, the Supreme court refused to accept the contentions put forward by the assessee. Since the facts appearing in this

decision are entirely different, this decision also will not render any assistance in deciding the issued arising in the present case.

Yet another decision brought to out notice was that reported in the case Commissioner of Income Tax, Gujrat Vs. Kohinoor Flour Mills, . The

facts arising in this case are as under (headnote) :

The assessee, a private limited company, was not assessed to Income Tax before the assessment year 1965-66. It was liable to pay Income Tax

for the assessment year 1965-66 and, therefore, liable to file an estimate of advance tax before March 31, 1965, and to pay the advance tax on

March 15, 1965. The assessee filed on March 25, 1965, an estimate showing an income of Rs. 3,66,000 and paid advance tax of Rs. 1,83,000

on March 26, 1965. As the estimate wa not filed before the due date, the assessee was held liable to pay penalty u/s 273 of the Income Tax Act,

1961.

On these facts, the Gujarat high Court held as under.

that having regard to the tenor and tense of the language used in section 273(b) read with section 273(ii), the crucial date for levy of penalty

cannot be the date of default as contended on behalf of the Revenue. The basis of penalty u/s 273(ii) is the amount on which interest is payable u/s

217(1), interest payable in case of default for not filing return as required by section 212(3) is to commence from the 1st day of April next

following the financial yea in which advance tax was payable and it is to run up to the date of regular assessment. Therefore, the basis of penalty, as

prescribed u/s 273(ii), being the amount on which interest is payable u/s 217, the date with reference to which penalty is to be levied cannot be the

date of default.

This decision was rendered u/s 273(b). This decision was followed by the Tribunal in accepting the contentions put forward by the assessee.

Reliance was also placed on the decision reported in the case of The Commissioner of Income Tax, Delhi (Central), New Delhi Vs. Bharat

Nidhi Ltd., . In this decision, while considering the provision contained in section 215(1), 273(a) of the Act before amendment in 1968, the Delhi

High Court pointed out the method in arriving at the shortfall. The contention of the assessee in this case was that on the language of section 273(a)

the penalty in the present case should be 10% (as determined by the Tribunal) of the amount by which the tax paid by him during the financial year

in quesion fell short of 75% of the tax determined on regular assessment minus the taxes deductible at source in accordance with the provisions of

section 192 to 194, 194A and 195. On the other hand, according to the Department, the penalty should be 10% of the amount by which the tax

paid by the assessee during the financial year fell short of 75% of the tax determined on regular assessment minus the tax deductible under sections

192 to 195. The Delhi High Court accepted the contention put forward by the assessee. The question of accepting the advance tax paid belatedly

but before the end of the financial year, as advance tax paid under the provisions of Chapter XVII-C was not the subject-matter of this decision.

Therefore, this decision is also not helpful in deciding the question arising in the present case.

It is also significant to note in this context that while considering the penalty imposable u/s 18A(9) and 28(1) (c) of the Indian Income Tax

1922, in the case of P. Arunachala Mudaliar Vs. Commissioner of Income Tax, Madras, , this court held as under (p. 41) :

The point that arises for decision is whether the assessee furnished the estimate of the tax u/s 18A (2) on September 13, 1952, knowing or having

reason to believe that it was untrue. Now, section 18A(9) is one of the punishment section of the Act. It is a common feature of every taxing

statute to impose penalty for violation of all or any of the provisions therein. Such penal provision has to be construed so as not to affect the

subject, unless he or she is plainly caught within the literal statutory language. In adjudging the culpability of the assessee u/s 18A the Department

has the unified role of both the prosecutor and the judge. We do not suggest that the said provision is unifirm or invalid because of this

circumstance. We only wish to emphasize the fact that every care and caution must be taken by the Department to see that the provision is not

used against the assessee a an instrument of oppression. The proceedings are of a quasi-judicial character and it is unnecessary to point out that the

authorities mustact in a fair and unbiased manner. The accusation against the assessee is in the nature of a criminal charge and it is obvious that the

guilt must be brought home to him by adopting the standard of proof, as far as may be possible, requisite to sustain a conviction in a criminal court.

We have considered the decisions cited before us. The question that now remains to be considered is whether the advance tax paid belatedly

but within the financial year immediately relevant to the assessment year under consideration can be taken as advance tax paid in pursuance of the

provisions contained in Chapter XVII-C. The fact reminds that the sum of Rs. 3,20,000 paid as advance tax according to the estimate filed on

March 30,1968, was accepted as advance tax and given credit for u/s 219 by the Income Tax Officer in the assessment proceedings. A careful

perusal of the decisions cited before us would go to show that while considering the provisions containing sections 214 and 217 of the Act the

majority of the High Courts uniformly held that advance tax paid belatedly but before the end of the financial year immediately relevant to the

assessment year under consideration should be taken as advance tax paid for the purpose of payment of interest under sections 214 and 217. In

fact, the gujarat High court in Commissioner of Income Tax, Gujrat Vs. Kohinoor Flour Mills, , as mentioned above, clearly pointed out that the

basis of penalty u/s 273(ii) is the amount on which interest is payable u/s 217. We are also of the view that what is advance tax actually paid for the

assessment proceedings can also be the advance tax actually paid for the assessment proceedings can also be the advance tax actually paid for the

penalty proceedings u/s 273(a) of the Act. The Department can not have two views, one for the assessment proceedings sand another for the

penalty proceedings while considering the advance tax paid baldly, but before the end of the financial year immediately preceding the assessment

year under consideration. Further, in a case of legislative ambiguity, the assessee should be entitled to the benefit of doubt particularly in a provision

which attempts to penalise the assessee (See The Commissioner of Income Tax, West Bengal 1, Calcutta Vs. Vegetables Products Ltd., . We

have already pointed out in this case that there is no finding given by the Income Tax Officer to the effect that the original estimate of the advance

tax furnished by the assessee was untrue to the knowledge or reasonable belief of the assessee. On a careful consideration of all these aspects, we

are of the opinion that the Tribunal was correct in upholding the order passed by the Appellate Assistant Commissioner in the penalty proceedings

u/s 273(a) of the Act.

In that view of the matter, we answer the question referred to us in the affirmative and against the Department. The assessee is entitled to its

costs Counsel''s fee is fixed at Rs. 500.