COMMISSIONER OF INCOME TAX Vs. ALMORA MAGNESITE LTD

JUDGEMENT

(1.) BEING aggrieved by the decision of the Tribunal deleting the penalty imposed by the AO, the Department has filed this appeal under Section 260A of the IT Act.

(2.) THE appeal is in respect of the asst. yr. 1988 -89.

(3.) THE assessee filed its return of income on 29th June, 1988, declaring a loss of Rs. 1,52,15,207. The assessment was completed under Section 143(1)(a). The total income was determined at Rs. 4,92,501 after giving effect to Section 115 of the IT Act. The AO issued notice under Section 273(1)(b) of the IT Act on the ground that the assessee has failed to submit estimate of advance tax under Form No. 29. The AO, therefore, imposed penalty of Rs. 50,000. According to the AO, the assessee failed to file the estimate of advance tax under Section 209A of the IT Act. He, therefore, imposed penalty of Rs. 50,000. Being aggrieved, the assessee went in appeal to CIT(A). The appeal was allowed on the ground that assessee had filed Form No. 29. The appellate authority found that in the present case even before the assessee could appear on 11th Dec., 1989, the AO passed penalty order under Section 273(1)(b); that the assessee had no opportunity to satisfy the AO that it had filed Form No. 29 declaring an income of Rs. 25,00,000 against the carry forward loss of earlier years, which was set off resulting in net loss of Rs. 90,00,000, The appellate authority also found technical default on the part of the assessee in not filing the statement in Form No. 28A and that instead of filing Form No. 28A, the assessee had by mistake filed Form No. 29. Therefore, the appellate authority deleted the penalty on the ground that the assessee had committed technical default; that there was no wilful default on the part of the assessee. This finding has been confirmed by the Tribunal. Therefore, the Department has come by way of appeal.