Itxa/460/2001 Of The Commissioner Of Income Tax, Mumbai-Ii v. Premier Automobile Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAYO.O.C.J. INCOME TAX APPEAL NO. 460 OF 2001 The Commissioner of Income Tax,Central-II, Mumbai v/s. M/s. Premier Automobiles Ltd. .. Appellant .. Respondent Mr.K.R.Chaudhary i/by Mr. H.D.Rathod forappellant. CORAM : R.M.LODHA ANDJ.P.DEVADHAR,JJ. DATED:13thAugust, 2004 P.C. Heard Mr. K.R.Chaudhary, the learned counselfor the revenue. 2. The Tribunal considered the controversy inquestion thus- "7. The total income in this case wasassessed at Rs.14,08,26,470/- against thereturned income of Rs.6,45,64,810/-.Assessee had filed statement of advance taxin Form 28A on 15.6.83 showing businessincome as loss and total income subject toadvance tax was shown at nil. Thisstatement was filed after the close of theprevious year. As the estimate of advancetax payable was not filed by the assesseeu/s.209A(4), penalty proceedingsu/s.273(2)(c) were initiated. Assessee’sresponse to the show-cause notice was thatat the relevant time, the last completedassessment was that of A.Y. 1979-80, whichwas a loss assessment and the incomedeclared by it for subsequent A.Y. i.e.1980-81, 1981-82 and 1982-83 was nil income. In view of this fact, it was submitted thatthere was no liability to pay advance taxu/s.209A(i). Since it had no liabilityu/s.209A(i), it was contended that, assesseewas not liable to file higher estimate ofadvance tax u/s.209A(4) also. In view ofthis, it was submitted that assessee had notcommitted any default either U/s.209A orU/s.212.The AO rejected the explanation of theassessee and levied the impugned penalty.8. CIT(A) cancelled the penalty herebyrelying on the order of the Tribunal inassessee’s own case for the presentAssessment Year wherein interest u/s.217 wasdeleted.9. A copy of the above mentioned order ofthe Tribunal in ITA No.3856/Bom/1987dt.2.7.91 is placed on record. By the saidorder, Tribunal has accepted the contentionof the assessee which has been discussedabove. Tribunal has also placed reliance onthe decision of the Bombay High Court in thecase reported in 165 ITR 99. Since theTribunal has accepted the contention of theassessee, as regards levy of interestu/s.217, the same being applicable inpenalty proceedings also, the order of theCIT(A) cancelling the penalty is upheld." substantial question of law arises. Appeal is dismissed. TribunalNo (R.M.LODHA,J.) (J.P. DEVADHAR, J.)