1993 (7) TMI 331

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ices were issued under section 12-B(3) seeking the explanation of the petitioner and pointing out the several days of delay involved. We find that the delays are marginal in the sense on a few occasions the delay in making the payment ranged between 20 to 25 days. In one case it exceeded one month and in the month of August the delay involved was 2 months and 21 days. The assessee filed his explanation and pointed out that the assessee was getting the stock from its head office at Nagpur and the sales were effected at Bangalore thereafter. All the cheques collected at Bangalore were sent to the head office at Nagpur and there used to be delay in the process of realising the cheques and, therefore, there were some delays in the payments ever....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ereof) penalty at ten per cent of the defaulted amount of tax shall be levied." The Appellate Tribunal did not disturb the finding of the appellate authority. However, it adopted a different formula to levy the penalty. The order of the Appellate Tribunal in this regard reads: "Considering the period of delay in payment of advance tax for each month as required under section 12-B(1) of the Act, we are of the view that calculation of penalty for default at the rate of one and one half per cent of the amount of tax per month for part of the month for the period of default for the first three months after the period of expiry of the time prescribed under section 12-B(1) of the Act and two and one half per cent of such amount for each mon....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....her penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances'." It is now an accepted principle that levy of penalty is in the nature of a quasi-criminal proceeding and the power to levy penalty should be exercised only if the party concerned is proved to have acted in total disregard of the law and in this regard the conduct of assessee is quite relevant. When there is no finding that the defaulting party defaulted deliberately and the circumstances disclose that the assessee acted to the best of his capacity to comply with the provisions of the law, the penalty shall not be levied. Circumstances ....