ORDER
S. Grover, Judicial Member
1. In this second appeal confirmation of penalty of Rs. 52,990, which the ITO, Saharanpur, levied on 28-3-1984 under the stated head as Section 273(2)(a) of the Income-tax Act, 1961 (‘the Act’) in respect of the assessment year 1981-82, for which the previous year was the financial year 1-4-1980 to 31-3-1981, is contested.
2. The facts as stated by the Commissioner (Appeals), whose order dated 21-7-1984 is brought in appeal, are that the appellant firm submitted an estimate of advance tax under Section 209A(4) of the Act on 11-9-1980 estimating income of Rs. 90,160. On 13-3-1981 the firm filed another estimate in Form No. 29 revising income at Rs. 8 lakhs and advance tax payable thereon to the tune of Rs. 1,95,800. The return of income, however, was filed at Rs. 38,79,170 against which assessment was completed on 30-3-1982 on an income of Rs. 38,99,160.
3. The ITO issued a show-cause notice requiring the assessee to explain as to why penalty be not imposed for filing estimate of income which it knew or had reason to believe to be untrue. The assessee filed explanation in response.
4. Before proceeding further, however, we like to state that the ITO captioned the penalty order as under Section 273(2)(a) and though the learned Commissioner (Appeals) observed that it was an inadvertent error and the correct section to be mentioned was Section 273(2)(c), but according to us the default for which the penalty was leviable was under Section 273(2)(aa). Wrong mentioning of section in the orders of the ITO as also the Commissioner (Appeals)’s orders is not considered as of any significant consequence, because all the facts were correctly stated by the ITO and wrong reference to the power/provision under which an order is made does not vitiate the order if there is some other power/provision, under which the order could lawfully be made. In the instant case proceedings were correctly initiated under Section 273 and, therefore, wrong mention of sub-section did not make any difference to the rights of the taxpayer. We have a binding decision of the Hon’ble Allahabad High Court in similar situation in the case of CIT v. Motilal Padampat Sugar Mills Co. (P.) Ltd. [1979] 118 ITR 825.
5. As provided under Section 273(2)(a) a penalty could be imposed for furnishing an incorrect estimate of advance tax under the provisions of Sub-section (1) or Sub-section (2) or Sub-section (3) or Sub-section (5) of Section 209A. But since the appellant was a regular assessee he was not required to file an estimate under the provisions of Section 209A(1)(b) but was to file a statement of advance tax under Section 209A(1)(a). Alternatively it could have filed an estimate of advance tax under Sub-sections (2), (3) or Sub-section (5) of Section 209A. This could be done in case the appellant was of the opinion that it was liable to earn less than that on the basis of which he was required to file a statement of advance tax under Section 209A(1)(a). Of course, Sub-section (5) of the said section is also available for revising an estimate. However, the provision of Sub-section (4) of Section 209A provides that where an assessee by his current income being likely to be greater than the income on which the advance tax is payable or for any other reason the amount of advance tax computed in the manner laid down in Section 209 of the Act on the current income exceeds the amount of advance tax so payable by more than 33 1/3 per cent, he 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 the current income and the advance tax payable thereon. The estimate of advance tax submitted on 11-9-1980 was, thus, under Section 209A(4). On such facts the penalty was to be processed for default as provided under Section 273(2)(aa) and penalty computed as provided in Sub-clause (id) of Clause (c). Since the quantum of penalty for various defaults under Section 273 is the same, it did not affect the assessee adversely in any fashion.
6. Though for the assessee Shri O.P. Sapra, advocate, contended that wrong mentioning of the provision showed that the ITO was not even aware of the default which was sought to be processed by him and, therefore, the penalty order was vitiated on that account alone. Such contention is rejected for the reasons mentioned by us above.
7. Shri Sapra next contended that the assessee’s estimate of income of Rs. 8 lakhs on 13-3-1981 was bona fide, as it could not possibly anticipate income of Rs. 38 lakhs. The argument was that in the immediately preceding year income being much less and considering the type of business and further there being very substantial sale and income between 13-3-1981 and 31-3-1981 it could not be inferred and held that the assessee had knowingly furnished wrong estimate. Relying on the language of Sub-section (2) it was pleaded that the onus was on the revenue to prove that the assessee had filed untrue estimate knowingly. At this stage we like to bring in close focus the relevant provision of Sub-section (2) of Section 273 :
(2) If the Income-tax Officer, in the course of any proceedings in connection with the regular assessment for the assessment year commencing on the 1st day of April, 1970, or any subsequent assessment year, is satisfied that any assessee-
(a) has furnished under Sub-section (1) or Sub-section (2) or Sub-section (3) or Sub-section (5) of Section 209A, or under Sub-section (1) or Sub-section (2) of Section 212, an estimate of the advance tax payable by him which he knew or had reason to believe to be untrue, or
(aa) has furnished under- Sub-section (4) of Section 209A or under Sub-section (3A) of Section 212 an estimate of the advance tax payable by him which he knew or had reason to believe to be untrue, or
(b) has without reasonable cause failed to furnish an estimate of the advance tax payable by him in accordance with the provisions of Clause (b) of Sub-section (1) of Section 209A, or
(c) has without reasonable cause failed to furnish an estimate of the advance tax payable by him in accordance with the provisions of Sub-section (4) of Section 209A or Sub-section (3A) of Section 212,
8. The satisfaction of the ITO as stipulated under Sub-section (2) would necessarily depend on the facts of a given case. If the explanation of the assessee in support of its conduct is reasonable and plausible then mere variance in the estimated income and the assessed income certainly would not bring in rigours of penalty but if an unbelievable assertion is made then the revenue does not have to establish anything.
9. On the assessee’s taking defence that it did not anticipate income exceeding Rs. 8 lakhs on 13-3-1981 the ITO specifically solicited information regarding the extent of business transactions from 13-3-1981 to 31-3-1981. The sale during the entire year amounted to Rs. 1.92 crore and between 15-3-1981 to 31-3-1981 turnover was of the order of Rs. 61.05 lakhs. The assessee also led evidence that during the last 15 days of the year supply of liquor worth Rs. 39.7 lakhs was made to Madhya Pradesh and that on such sales profit, which amounted to 28 per cent, was much higher than average profit rate of about 20 per cent. However, in the explanation dated 28-3-1984 the assessee stated that the tender in relation to the supply of country liquor to Madhya Pradesh was accepted in the month of January 1981 and for such supply the Excise Commissioner, UP issued permits in February 1981 and in March 1981. Therefore, we could understand a case where the assessee transacted unexpected business after filing of the estimate but such posture could not be rationally adopted by the assessee. Having been issued permits for supply of liquor in February and March 1981 the assessee could reasonably estimate its business and income for the whole month of March. In any case disparity between the estimate of income made on 13-3-1981 and the income earned up to 31-3-1981 was so substantial that there was hardly anything left for the ITO to prove. On such facts the approach of the learned Commissioner (Appeals) in confirming the minimum penalty of Rs. 52,990 against maximum of Rs. 7,94,836 cannot be said to be wrong or unjustified.
10. Shri Sapra placed strong reliance on the judgment of the Hon’ble Calcutta High Court in the case of CIT v. Birla Cotton Spg. & Wvg. Mills Ltd. [1985] 155 ITR 448 for his submission that burden of proving that estimate of advance tax was incorrect or false to the knowledge of the assessee was on the revenue. We have seen the authority in which it is laid down that though mere disparity between the estimate and the income returned or the income assessed by itself would not justify imposition of penalty under Section 273 but where there is a disparity and the disparity is enormous, mere self-serving statement of the assessee that he thought his estimate represented a probable income would not be sufficient to escape a liability under Section 273 and he must justify the basis of his estimate. We fail to see as to how the judgment helps the assessee’s case in view of the prevailing facts.
11. Confirming the order appealed against, we dismiss the appeal.