Ajit K. Sengupta, J.
1. In this reference under Section 256(1) of the Income-tax Act, 1961, for the assessment year 1982-83, the following question of law has been referred to this court :
'Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the assessee was not liable to pay any interest under Section 216 of the Income-tax Act and thereby vacating the order of the Commissioner passed under Section 263 of the Income-tax Act, 1961 ?'
2. The facts leading to this reference are stated hereafter :
3. The assessee-company was taken over by Tata Iron and Steel Co. Ltd, For the period relating to the assessment year 1982-83 (the relevant accounting period being the year ending on March 31, 1982), the assessee filed a statement of advance tax under Section 209A(1)(a) of the Income-tax Act, 1961 (hereinafter referred to as 'the Act'), declaring its income as nil, in view of the fact that the last regular completed assessment for the assessment year 1978-79 was computed as nil as the assessee was suffering a loss and in view of the further fact that, for the later assessment years 1979-80 to 1981-82, the assessee's total income as returned was also nil and there was no payment under Section 140A of the Act. The assessee, accordingly, did not deposit any tax for the first two instalments. However, before the last instalment (i.e., the instalment forthe period ending March 25, 1982) was due, the assessee, on March 11, 1982, filed an estimate in Form No. 29 showing the estimated income of Rs. 4 crores and paid advance tax of Rs. 2,25,50,000.
4. The assessee subsequently filed a return for the assessment year 1982-83 on July 30, 1982, showing nil income. The assessing authority, as per the assessment order dated March 29, 1985, completed the assessment on a total income of Rs. 6,56,77,720.
5. The assessee moved an application under Section 154 for rectification of several mistakes which appeared in the said assessment order. The Income-tax Officer, while passing the order under Section 154, observed as follows :
'The assessee filed Form No. 28A on September 14, 1981, showing nil amount payable and Form No. 29 on March 11, 1982, showing Rs. 2,25,50,000 as advance tax payable. Notice under Section 210 was not issued in this case. In these circumstances, interest under Section 216 is not chargeable.'
6. The assessee filed for the assessment year 1982-83 a nil income return in view of the fact that, by reason of the interim orders granted by this court in C. R. No. 12580(W) of 1981 on December 14, 1981, and April 7, 1982, the income-tax authorities were restrained from giving effect to Section 80J(1A) which was introduced by reason of the amendment of Section 80J. In view of the said interim orders and further, in view of the pendency of the proceedings before the Supreme Court challenging Section 80J(1A) of the Act, the assessee, on the basis of the old provision before the amendment, submitted its return of income after setting off the deficiencies of the earlier years available under Section 80J(3) of the Act and hence after setting off such deficiencies, the income became nil.
7. The Commissioner of Income-tax, West Bengal, Calcutta, subsequently passed an order under Section 263 revising the order of the Income-tax Officer passed under Section 154 and held that the assessee was liable to pay interest under Section 216 as, according to him, the statement which was filed in terms of Section 209A(1)(a) amounted to an estimate and that the shortfall in the said estimate which was filed under Section 209A(1)(a) of the Act attracted interest under Section 216 of the Act. The Commissioner took the view that the statement which is required to be filed under Section 209A(1)(a) should be treated as an estimate.
8. On appeal against the said order, the Tribunal took the view that a distinction has consistently been maintained by the Legislature between'statement' and 'estimate' of advance tax. According to the Tribunal, on the facts of the present case, the assessee has paid tax in accordance with the statutory provision and is not liable to pay any penal interest under Section 216 of the Act.
9. At the hearing before us, it is contended by Dr. Pal, learned counsel for the assessee that Section 216 of the Act is not attracted in this case. He also submitted that the statement filed under Section 209A(1)(a) cannot be treated as an estimate for the purpose of Section 209 or for the purpose of Section 216 of the Act. On the other hand, the contention of the Revenue is that there is no distinction between statement and estimate and as the assessee did not make any payment of the first two instalments, Section 216 is attracted.
10. We have considered the rival contentions. Interest under Section 216 of the Act is attracted if the following two conditions are satisfied :
(a) On making the regular assessment, the Income-tax Officer finds that an assessee has, under Section 209A or under Section 212 of the Act, underestimated the advance tax payable by him and thereby reduced the amount payable in either of the first two instalments ; or
(b) Under Section 213 of the Act, wrongly deferred the payment of advance tax on a part of his income.
11. Condition (b) has no application in this case. In the present case also no estimate has been filed under Section 212 of the Act as, admittedly, no order under Section 210 of the Act had been made by the Income-tax Officer. Unless an order under Section 210 of the Act is made by the Income-tax Officer, the question of filing an estimate under Section 212 of the Act does not arise.
12. The only point for consideration is whether, when the assessee has filed a statement under Section 209A(1)(a) of the Act, the said statement can be treated as an estimate for the purposes of Section 209 and also for the purposes of Section 216 of the Act. Section 209A of the Act provides that, in a case where an assessee has been previously assessed by way of regular assessment under the Act, he has to file a statement of advance tax payable by him computed in the manner laid down in Clause (a) or Clause (d)(i) of Section 209(1), as the case may be. Such statement is required to be filed before the date on which the first instalment becomes due. Under Section 209(1)(a) of the Act, the statement is to be made on the basis of the total income of the latest previous year in respect of which he has been assessed by way of regular assessment. If, however,for any subsequent year, tax has been paid under Section 140A of the Act, the statement is to be made on the basis of such total income if such total income exceeds the total income computed in the latest regular assessment. In the case, admittedly, the income for the year 1978-79 was nil. The total income of all the later years on the basis of the return was also nil. Hence, both under Sub-clauses (a) and (d)(i) of Section 209(1) of the Act, the income being nil, the assessee correctly, in accordance with the provisions, of Section 209(1)(a) of the Act, submitted its statement before the first instalment was due showing nil income. In terms of Section 209A(4) of the Act, the assessee, before the last instalment was due, filed its estimate showing its income at Rs. 4 crores and paid advance tax of Rs. 2,25,50,000.
13. The statement which is made under Section 209A(1)(a) of the Act is different from the estimate which is required to be submitted under Section 209A(4) or under the various other provisions of the Act. The Legislature has made a distinction between a statement which is required to be filed under Section 209A(1)(a) and the estimate which is to be filed either under Section 209A(4) or under the various other provisions of the Act. The interest under Section 216 of the Act is attracted only in a case where an estimate is filed in respect of the first two instalments and such estimate is subsequently found to be an underestimate in comparison with the subsequent estimate which is filed before the last instalment. This will be evident from a reading of the various provisions of the Act. To illustrate, Section 209A(2) of the Act lays down that, where an assessee who is required to send a statement under Section 209(1)(a) on or before the date on which the first instalment of advance tax is due he may send to the Income-tax Officer, in lieu of such statement, an estimate of his current income calculated in the manner laid down in Section 209 of the Act. It will be apparent that, where a statement is filed under Section 209A(1)(a) of the Act, the assessee is not required to estimate his current income. He has to comply only with the statutory requirement of Section 209(1)(a) and (d)(i) and prepare a statement accordingly. Therefore, when the statute does not require him to make an estimate, the question of underestimating his income does hot arise when the statement is made under Section 209A(1)(o) of the Act in accordance with the provisions of the section. That the Legislature has made a distinction between a statement of advance tax required to be furnished under Section 209A(1)(a) and an estimate of advance tax will also be apparent from the fact that the statement under Section 209A of the Act is to be furnished in Form No. 28A and the estimate advance tax is required to be submitted in Form No. 29. Reference may also be made in this connection to Section 217 ofthe Act which refers to a statement which is required to be furnished under Section 209A(1)(a) and an estimate which may be filed in lieu of such statement referred to in Section 209A(2) of the Act. Similarly, Section 218(1)(a) makes a specific distinction between a statement required to be filed under Section 209A(1) and an estimate filed under Section 209A of the Act. Such distinction also is to be found in Section 273 of the Act. Section 273(1) gives power to the Income-tax Officer to levy penalty when no statement under Section 209A(1)(a) of the Act is filed or such statement is untrue. Section 273(2) of the Act deals with imposition of penalty in a case where the estimate of advance tax is not filed or such estimate is found to be wrong or untrue under Section 209A of the Act.
14. It is, therefore, evident that the Legislature has made a clear distinction between a statement which is required to be filed under Section 209A(1)(a) and an estimate which is required to be filed either under Section 209A(2) which is to be made in lieu of the statement to be made under Section 209A(1)(a) or an estimate which is required to be filed under Section 209A(3) or (4) of the Act. Further, when an assessee is required to file a statement under Section 209A(1)(a), he is not to estimate his current income. He has to comply with the provisions by furnishing a statement in accordance with Section 209(1)(a) or (d)(i) of the Act. To comply with the aforesaid provision, no estimate of the current income is required to be made by the assessee. He merely calculates his advance tax on the basis of his total income of the latest regular assessment or on the basis of the total income on the basis of the return subsequently filed where there is a payment under Section 140A of the Act, whichever is higher. Hence, the interest which is levied under Section 216 of the Act cannot be attracted to a case where the assessee is required to file a statement under Section 209A(1) of the Act. But Section 216 of the Act is attracted only in a case where the assessee has to estimate his current income and sucb estimate is found subsequently to be an underestimate compared to the later estimate filed by him in the last instalment. Where an assessee is not required to file an estimate of his income, the question of underestimating the same cannot and does not arise and the provisions of Section 216 of the Act cannot be attracted in such a case. The court has to interpret a provision according to the plain meaning of the section and cannot read more into the language of a provision than what is warranted by the express provisions of the section. Where the Legislature uses two different words in the same provision, it is not permissible to equate the scope and meaning of the two words which, on their plain language, are different. It is a well-settled rule that, when twointerpretations are possible, in other words, where the provision is capable of two alternative meanings, the one favouring the taxpayer is to be adopted, particularly when such a provision purports to impose penal interest.
15. For the reasons aforesaid, we answer the question in this reference in the affirmative and in favour of the assessee.
16. There will be no order as to costs.
Shyamal Kumar Sen, J.
17. I agree.