TaxTMI 
TaxTMI 
1995 (9) TMI 100
X X X X Extracts X X X X
X X X X Extracts X X X X
....ome at Rs. 40,000. However, the income returned was Rs. 73,940 which was accepted by the Assessing Officer under section 143(3) subject to rectification under section 155 adopting correct share income from the firms. Thus, the returned income and the assessed income was higher than the income shown in the estimate. In fact, the assessee has received a notice for payment of advance-tax amounting to Rs. 31,870 on total income of Rs. 81,400. However, in response to the same, the assessee has filed a lower estimate by estimating the income at Rs. 30,000 as mentioned earlier. The Assessing Officer thereupon issued a notice under section 274/273 dated 25-10-1985 to the assessee. In response to the said notice the assessee offered explanation vide....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sessment year and the date and time for representation before him were mentioned. The last paragraph in the first page of the said notice was marked with an asterisk indicating that the provisions contained in that paragraph are not applicable to the assessee. The said paragraph reads as under : " furnished under sub-section (2)(3) of section 18-A of the Indian Income-tax Act, 1922, or under section 212 of the Income-tax Act, 1961, estimate (s) of advance tax payable by you for the assessment year.... which you knew or had reason to believe to be untrue." However, at page 2 of the said notice, the first paragraph was ticked indicating that the notice was issued under the provisions mentioned therein. The said paragraph reads as under ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....payment. However, without specifying as to which sub-section or provision applies to the issue on hand. The Ld. counsel contended before us that the notice having not been specific as to under which provision/sub-section the penalty is sought to be levied, the initiation of proceedings itself is invalid in law. Even otherwise, the penalty order, having specifically mentioned the section under which the penalty is sought to be levied by the Assessing Officer, is invalid because the assessee has furnished an estimate and also a revised estimate under section 212(3A) and, therefore, there is no failure on her part of file an estimate as envisaged under section 273(2)(c) of the Act. Thus, on both counts, the penalty levied is without any basis.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Officer under section 273(2)(c) of the Act, it is very clear that the penalty is sought to be levied under an incorrect provision which is not applicable to the facts of the assessee before us. Thus, the jurisdiction assumed by the Assessing Officer in calling for the explanation for the levy of penalty is incorrect. The notice does not specify as to under which section or subsection the penalty is sought to be levied so that she could explain the reasons therefor. As already mentioned above, section 212(3) of the Act which is the basis for levy of penalty as per the said notice is no longer on the statute book as the same is omitted w.e.f. 1-6-1978. The illegality is compounded by passing an order under section 273(2)(c) of the Act, inasmu....