The penalty under section 140A(3) of the Income Tax Act, 1961, is considered as an additional tax for securing compliance with the provisions of the Act, and it is not confiscatory or unreasonable.

S.R. Rajashekhara Murthy, J.-- In these writ petitions, the petitioners who are assessees under the Income Tax Act have challenged the constitutional validity of section 140A(3) of the Income Tax Act, 1961 ("the Act").

2. Penalty is leviable under the said proviso for any failure to pay the tax or any part of it along with the return furnished under section 139 or under section 148 of the Act.

3. The petitioners have relied upon a decision of the Madras High Court in A.M. Sali Maricar and Anr. Vs. Income-tax Officer and Anr., (1973) 90 ITR 116 Mad , in which the said provisions were struck down by the Madras High Court, being violative of article 19(1)(f) of the Constitution.

4. It is pointed out by learned counsel for the Department that several High Courts have taken a contrary view and relied upon the decision of the Andhra Pradesh High Court in Kashiram Vs. Income-tax Officer, E-Ward, (1977) 107 ITR 825 AP ; Commissioner of Income Tax Vs. Vrajlal Manilal and Co., (1981) 127 ITR 512 MP ; Seva Ram Vs. Income-tax Officer and Others, (1983) 141 ITR 933 J&K .

5. To recapitulate, the reasons given by the Madras High Court are that the penalty levied under section 140A(3) is not compensatory or interest on the delayed payment of tax and its retention has no relation to the duration of the delay or the wilful or other nature of the violation or the inability to pay the tax. It was also held that it has no rationale or intelligible nexus with the recovery of tax and was, therefore, violative of article 19(1)(f) of the Constitution.

6. The earliest of the decisions in favour of the Department is Kashiram Vs. Income-tax Officer, E-Ward, (1977) 107 ITR 825 AP .

7. The Madhya Pradesh High Court in Commissioner of Income Tax Vs. Vrajlal Manilal and Co., (1981) 127 ITR 512 MP , has upheld the validity of section 140A(3) on the ground that the penalty under section 140A(3) is in the nature of additional tax for securing compliance with the provisions of section 140A. The High Court also rejected the contention that it was confiscatory and unreasonable. Then followed the Andhra Pradesh High Court decision in Kashiram Vs. Income-tax Officer, E-Ward, (1977) 107 ITR 825 AP and the Calcutta High Court decision in Gunny Exporters (P.) Ltd. v. ITO [1976] TLR 603, who have dissented from the Madras High Court decision in A.M. Sali Maricar and Anr. Vs. Income-tax Officer and Anr., (1973) 90 ITR 116 Mad .

8. One other decision which has taken a similar view is that of the Jammu and Kashmir High Court in Seva Ram Vs. Income-tax Officer and Others, (1983) 141 ITR 933 J&K , which has upheld the levy of penalty as a valid levy made under entry 82 of the First Schedule of List I to the 7th Schedule to the Constitution. They also relied upon the Supreme Court decision in C.A. Abraham, Uppoottil, Kottayam Vs. The Income-tax Officer, Kottayam and Another, AIR 1961 SC 609 , in support of their conclusion that penalty was only an additional tax and nothing more.

9. Learned counsel for the Department has also relied upon the decision of the Supreme Court in Vrindavan Goverdhan Lal Pittie Vs. Union of India (UOI) and Others, AIR 1986 SC 1668 , in which the validity of section 18(1)(a) of the Wealth-tax Act, 1957, providing for penalty in filing the return of wealth was upheld.

10. In the light of the decisions of several High Courts referred to above which have upheld the validity of the provisions of section 140A(3) of the Act, which I choose to follow, the writ petitions have to be dismissed for the same reasons. Even on facts, the reason for the failure to pay advance tax put forward by the assessee, namely, that there was confusion about the status, cannot be accepted.

11. Therefore, the writ petitions are accordingly dismissed.