INCOME TAX OFFICER v. CIGFIL (P) LTD
[Citation -1984-LL-0721-1]

Citation 1984-LL-0721-1
Appellant Name INCOME TAX OFFICER
Respondent Name CIGFIL (P) LTD.
Court ITAT
Relevant Act Income-tax
Date of Order 21/07/1984
Assessment Year 1978-79
Judgment View Judgment
Keyword Tags instalment of advance tax • estimate of advance tax • advance tax estimate • investment allowance • plant and machinery • mala fide intention • current income
Bot Summary: CO No. 133 1983: The assessee's contention in this cross objection is that the ITO was wrong in levying interest under s. 216 on the assessee. Before the Commissioner the assessee contended that there was no underestimate of advance tax which would attract the provisions of s. 216 and that such levy was illegal. Under s. 209A(1)(a) the assessee had filed a statement of its advance tax in Form No. 28A on 11th July, 1978 based o n s. 140A tax paid for the asst. Under s. 209A(4) in the case of an assessee liable to pay advance tax under s. 209A(1) because of the current income being likely to be greater than the income on which the advance tax payable by him had been computed, the amount of advance tax payable on the current income exceeds the amount of advance tax computed by him by more than 33-1/3 per cent of the latter amount, the assessee, shall, on or before the date on which the last instalment of advance tax is payable by him, send to the ITO an estimate of his current income and pay advance tax on the current income accordingly. In the present case, the assessee has filed its estimate of advance tax under s. 209A(4) on 11th Feb., 1979 voluntarily. The ITO has not given any reasons to establish underestimate of advance tax by the assessee as required under s. 216(a). As would be seen from the assessee s explanation extracted in the Commissioner s order above, because of the labour trouble of the main customer ITC, Bangalore, there was no supplies by the assessee to ITC from April, to July, 1980 and it was because of this adverse feature that the assessee filed lower advance tax estimate on 11th Sept., 1980, just over a month after the labour problem had ceased.


These appeals by Department and cross objections by assessee are consolidated and disposed of by this common order. ITA Nos. 1868 to 1870 (Mad)/1983; Department's common contention in these appeals is that assessee is not entitled to investment allowance under s. 32A of IT Act in respect of plant and machinery used for manufacture of cigarette filters. Commissioner (A) had reversed ITO disallowance of investment allowance on concerned plant and machinery following decision of Tribunal, "D" Bench dt. 24th Feb., 1983 in ITA No. 819 (Mad)/1982 for asst. yr. 1978-79 in assessee's own case. We have heard parties. Department is before us to keep matter alive on ground that cited Tribunal's decision has not been accepted by Department. Following above order we would uphold Commissioner (A)'s finding. revenue's appeals are dismissed. CO No. 133 (Mds) 1983: assessee's contention in this cross objection is that ITO was wrong in levying interest under s. 216 on assessee. ITO had levied interest under s. 216 of Rs. 7,812 without discussion. Before Commissioner (A) assessee contended that there was no underestimate of advance tax which would attract provisions of s. 216 and that such levy was illegal. Commissioner (A) rejected this plea as under: "For asst. yr. 1980-81 (year ended 31st Dec., 1979) in absence of demand under section 210 by Department, Form No. 28A was filed by assessee on 11th June, 1979 (on basis of section 140A tax paid for asst. yr. 1979-80) showing advance-tax payable at Rs. 7,06,881 on total income of Rs. 10,95,940. This was revised on 11th Feb., 1979 to show advance-tax payable at Rs. 9,67,500. It is not however known why revision could not be made in Sept., 1979 itself but was done only before last instalment in Dec., 1979. Hence section 216(a) squarely applies, and interest of Rs. 7,812 charged by ITO is in order." After considering rival submissions, we are of view that assessee's contention is well founded. Under s. 209A(1)(a) assessee had filed statement of its advance tax in Form No. 28A on 11th July, 1978 based o n s. 140A (self assessment) tax paid for asst. yr. 1979-80. This estimate was revised on 11th Feb., 1979 to enhance advance-tax payable to Rs. 9,67,500. Under s. 209A(4) in case of assessee liable to pay advance tax under s. 209A(1) because of current income being likely to be greater than income on which advance tax payable by him had been computed, amount of advance tax payable on current income exceeds amount of advance tax computed by him by more than 33-1/3 per cent of latter amount, assessee, shall, on or before date on which last instalment of advance tax is payable by him, send to ITO estimate of his current income and pay advance tax on current income accordingly. In present case, assessee has filed its estimate of advance tax under s. 209A(4) on 11th Feb., 1979 voluntarily. It may be noted that under s. 216(a) interest can be levied in case of underestimate only when ITO finds that assessee has underestimated advance tax payable by him under s. 209A/212 and thereby reduced amount payable in either of first two instalments. In present case, no such factum of underestimate has been established by Department. On other hand assessee's filing of enhanced estimate in Feb., 1979, well within financial year would indicate assessee's bona fides in matter of advance tax payment. We are hence of view that there is no warrant for levy of interest. It is accordingly cancelled. CO No. 134(Mad)/1983: In this cross objection also assessee's contention is that ITO had wrongly levied interest under s. 216. In assessment ITO had directed levy of such interest without giving any reason. Commissioner (A) upheld ITO's levy as under: "For asst. yr. 1981-82, assessee filed estimates on 12th June, 1980 (total income of Rs. 4,50,000 and advance tax of Rs. 2,90,250), 11th Sept., 1980 (total income of Rs. 2,80,000 and advance tax of Rs. 1,80,600) and 10th Dec., 1980 (total income of Rs. 6,20,000 and advance tax of Rs. 3,99,900). It has been explained that main customer, ITC, Bangalore, was having labour trouble from March, 1980 and that there were no supplies to ITC from April to July, 1980. However, I find turnover for this assessment year to be Rs. 1,35. crores as against Rs. 1.34 crores last year, and estimate filed on 11th Sept., 1980 does not reflect correct position based on future turnover (for 1980 does not reflect correct position based on future turnover (for coming months), particularly when ITC's troubles were over in July, 1980. Hence, section 216(a) applies and interest of Rs. 4,929 has been rightly charged." After hearing parties we are of view that assessee s contention is acceptable. ITO has not given any reasons to establish underestimate of advance tax by assessee as required under s. 216(a). As would be seen from assessee s explanation extracted in Commissioner (A) s order above, because of labour trouble of main customer ITC, Bangalore, there was no supplies by assessee to ITC from April, to July, 1980 and it was because of this adverse feature that assessee filed lower advance tax estimate on 11th Sept., 1980, just over month after labour problem had ceased. In December, 1980 assessee gave enhanced advance tax estimate. conduct of assessee in above circumstances does not appear to us to show any mala fide intention to underestimate of advance tax, nor has Department brought any material on record to prove such intention. Hence, we are of view that interest visited by ITO on assessee cannot be sustained. assessee s cross objection is allowed. *** INCOME TAX OFFICER v. CIGFIL (P) LTD.
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