COMMISSIONER OF INCOME TAX Vs. DEEPAK TRADING CO

JUDGEMENT

(1.) In this reference made at the instance of the Revenue, the following question has been referred by the Tribunal for the opinion of this court under Section 256(2) of the Income-tax Act, 1961 :

(2.) The assessee is a partnership firm. This reference relates to the assessment years 1979-80, 1980-81 and 1981-82. For each of these three years, the assessee-firm filed its returns of total income beyond the statutory period prescribed in law. For such delay in filing the tax returns, the Assessing Officer levied penalties of Rs. 4,735, Rs. 3,857 and Rs. 329 for the said three years, respectively. The levy of such penalties was upheld by the Appellate Assistant Commissioner. In the course of second appeal before the Tribunal, it was contended on behalf of the assessee that the entire tax as assessed upon the assessee, a registered firm, in respect of each of the said three years was duly paid by way of advance tax. In fact, there was excess payment by way of advance tax in each of the said three years and on regular assessment, the assessee became entitled to receive refunds of advance tax paid earlier. The Tribunal, following the decision of the Supreme Court in Ganesh Dass Sreeram v. ITO, held that no penalty was leviable for late filing of the returns under Section 271(1)(a) of the said Act if it was found that in each of the said three years, the assessee had paid by way of advance tax amounts equal to and/or in excess of what was actually found to be payable on regular assessment.

(3.) This reference arises out of the aforesaid order of the Tribunal. The case of the Revenue is that the said decision of the Supreme Court is not applicable to a case of penalty leviable under Section 271(1)(a). The Revenue has referred to the decision of this court in CIT v. Priya Gopal Bishoyee [1981] 127 ITR 778. On behalf of the assessee, reliance has been placed on the decision of the Supreme Court in Ganesh Dass Sreeram's case as well as on the decision of the Andhra Pradesh High Court in P. Venkata Krishnayya Naidu and Son v. CIT, the decision of the Rajasthan High Court in CIT v. Builders Engineers Co. as well as of the Punjab and Haryana High Court in CIT v. Harish Chand and Co. and in CIT v. Braham Prahash and Co.