P I JOHN Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS is a revision application under Section 78 of the Agricultural Income-tax Act, 1991, against an order of the Deputy Com missioner (Appeals), Agricultural Income-tax and Sales tax, Kollam, dated September 30, 1991, whereby the appellate authority dealing with the penalty proceedings, while confirming the proceedings modified its levy as the taxing officer had imposed it for the period prior to the filing of the return. The question that comes up for consideration and consequent decision before us is as to whether there can be any interference with the order of imposition of penalty as such.

(2.) THE year in question is 1980-81. Rupees 46,960 was the declared net income in regard thereto on the basis of the return dated September 18, 1980. However, it is undisputed that as per the position of law, the petitioner did not remit the tax due on the admitted income which was the basis for the initiation of notice of proceeding under Section 17A(3) of the Act which was served on the petitioner on December 30, 1986. THE order of the trial authority dated June 14, 1990, states that there was no contest to the said notice as no objections were filed against the proposal. THE trial authority imposed penalty of Rs. 18,666 for default in remitting advance tax along with the return for the year 1980-81. It is the contention before us that the return in question was prepared actually on August 20, 1980. As against the statutory requirement of filing of return and remitting the due tax on the admitted income came on the statute book with effect from August 19, 1980 (a day earlier), which was published in the Gazette on August 20, 1980, coincidentally on the same day when it is contended that return was prepared for despatch by post. It is alleged therein that there was no wilful negligence.

(3.) LEARNED counsel strenuously submitted that the power of imposition of penalty is a power to be exercised on the basis of judicial discretion in regard thereto and as a consequence the two factors are such that judicial discretion in regard thereto would be in favour of the petitioner.