Income-tax---

----Reference---Advance tax---Penalty---Underestimate of advance tax-- Finding that underestimation was not deliberate and cancellation of interest-- Tribunal justified in deleting penalty---No question of law---Indian Income Tax Act, 1961, Ss.215. 256 & 273

The assessee was a public limited company engaged in the business of transport of goods. For the assessment year 1979-80, the assessee filed an estimate of advance tax under section 212 of the Income Tax Act, 1961, at Rs.20,00,000. On December 15, 1978, the assessee also filed another estimate showing an income of Rs.50,00,000. The assessee-company filed a return of income for the assessment year 1979-80 declaring a total income of Rs.80,95,727. The assessment was completed on a total income of Rs.85,14,962. The Assessing Officer levied penalty of Rs.1,00,000. The Tribunal found that interest had been waived as there was no mala fide intention on the part of the assessee. It, therefore, deleted the penalty. On an application to direct reference:

Held, dismissing the application, that the Tribunal was right in cancelling the penalty on the ground that the authorities were not competent to impose penalty having waived the interest. No question of law arose from its order.

S. R. Ashok for Appellant.

Y. Ratnakar for Respondent.

JUDGMENT

MS. S. V. MARUTHI, J.---By this application, the Revenue seeks a direction to the Tribunal to refer the following question for the opinion of this Court: '

"Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal is justified in law in coming to the conclusion that penalty under section 273(2)(a)/273(2)(aa) cannot be imposed in a case where interest under section 215 has been partly waived under rules 40 and 117A of the Income-tax Rules, 1962?"

The facts in brief are that the assessee is a public limited company engaged in the business of transport of goods and is one of the largest cargo movers in the country. For the assessment year 1979-80, the assessee filed an estimate of advance tax under section 212 at Rs.20,00,000. On February 15, 1978, the assessee also filed another estimate showing an income of Rs.50,00,000. The assessee-company filed a return of income for the assessment-year 1979-80 declaring a total income of Rs.80,95,727. The assessment was completed on a total income of Rs.85,14,962. The Assessing Officer levied penalty of Rs.1,00,000 under section 273(2)(a) for filing an untrue estimate. On appeal, the Commissioner of Income-tax (Appeals) cancelled the penalty on the ground that the assessee could not make a fair and intelligent guess of advance tax liability. He found that there is no mala fide intention on the part of the assessee. On further appeal, the Tribunal held that since the interest is waived no penalty can be imposed, and the request of the Revenue to refer the case for the opinion of this Court was rejected. Hence, the present application.

Having regard to the circumstances, the Tribunal was right -in cancelling the penalty on the ground that the authorities are not competent to impose penalty having waived the interest. We do not see any error in the order passed by the Tribunal.

The I.T.C. is accordingly dismissed. No costs.

M.B.A./4005/FCCase dismissed.