2003 (4) TMI 16

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....ion 273(2)(a) of the Income-tax Act, 1961, authorised the Assessing Officer to impose the penalty under any other section, i.e., section 273(2)(aa) of the Act? (b) Whether penalty can be imposed under section 273(2)(aa) of the Income-tax Act, 1961, without the issue of show cause notice for the same? (c) Whether the Hon'ble Tribunal was justified in coming to the conclusion that the mention of section 273(2)(a) in place of section, i.e., 273(2)(aa) of the Income-tax Act was not material at all as the assessee was given reasonable opportunity of being heard before imposition of penalty and further holding that the assessee would not have furnished a different reply had the notice been issued under section 273(2)(aa) of the Act?" We ....

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....ve been issued under clause (aa) of sub-section (2) of section 273 and, therefore, this being a defective notice, the proceedings initiated on its basis were void ab initio and hence, the penalty order passed against the appellant was illegal. The issuance of wrong notice in the aforesaid manner, therefore, according to the appellant, has given rise to the formulation of the aforesaid three substantial questions of law. The Tribunal has very elaborately and succinctly dealt with the aforesaid issue. We reproduce the following part of the Tribunal's judgment, for appreciating the manner in which the Tribunal has dealt with so called defect in the notice. We quote: "We have gone through the case law cited on behalf of the assessee but a....

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....issued to him. The sub-section under which the assessee has filed the estimate of income tax is specifically within the knowledge of the assessee. If he is informed that he filed an estimate of advance tax payable by him which he knew or had reason to believe to be untrue (without mentioning the sub-section under which the estimate filed), the requirements of section 273(1) are fully satisfied. The assessee in such circumstances cannot complain that reasonable opportunity of being heard was not afforded to the assessee and, therefore, penalty imposed was bad in law. The text and setting of the provisions contained in clause (a) and clause (aa) of subsection (2) of section 273 are such that if a notice about the estimate of advance tax payab....