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Jyoti Traders and ors. Vs. S.M. Gore, Income Tax Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation;Criminal
CourtMumbai High Court
Decided On
Case NumberCriminal Application No. 709 of 1984
Judge
Reported in1986(1)BomCR289
ActsIncome-Tax Act, 1961 - Sections 271(1) 276C, 277 and 278; Code of Criminal Procedure (CrPC) , 1973 - Sections 482
AppellantJyoti Traders and ors.
RespondentS.M. Gore, Income Tax Officer and anr.
Appellant AdvocateK.M. Desai and Amit K. Desai, Advs.
Respondent AdvocateA.R. Gupte, Adv. for respondent No. 1 and ;S.S. Phanse, P.P., for State-Respondent No. 2
Excerpt:
direct taxation - parallel proceedings - sections 271, 276c, 277 and 278 of income tax act, 1961 and section 482 of criminal procedure code, 1973 - harmonious balance to be struck in case of parallel proceedings initiated by competent authority of tax department and criminal prosecution with regard to same matter - criminal prosecution maintainable and finally adjudicated upon by criminal court on its own merit - finding of department shall be considered by court and shall not be irrelevant in formulating final order in criminal proceedings - principle that criminal court cannot be made to surrender its judgment to department is to be kept intact - rule to be made flexible depending on facts and circumstances of each case. - - 5. in the next round of litigation, the first petitioner.....v.s. kotwal, j.1. an entry in the accounts is responsible for initiating two proceedings on the parallel track, one before the income tax official while the other on the forum of criminal court. the other peculiarity of the proceedings is that the concerned party was visited not only with the discarding of his explanation vis-a-vis that entry but also with imposition of penalty on the ground that there has been willful suppression or concealment of income whereafter, a criminal prosecution is launched on the basis of the same entry and more or less on the same platform with the existence of another. the texture of the litigation gets a further turn due to the peculiar development occurring during the pendency of the criminal proceedings wherein the highest authority in the hierarchy of.....
Judgment:

V.S. Kotwal, J.

1. An entry in the accounts is responsible for initiating two proceedings on the parallel track, one before the Income Tax Official while the other on the forum of Criminal Court. The other peculiarity of the proceedings is that the concerned party was visited not only with the discarding of his explanation vis-a-vis that entry but also with imposition of penalty on the ground that there has been willful suppression or concealment of income whereafter, a criminal prosecution is launched on the basis of the same entry and more or less on the same platform with the existence of another. The texture of the litigation gets a further turn due to the peculiar development occurring during the pendency of the criminal proceedings wherein the highest authority in the hierarchy of the structure of income tax Department construed the same entry in favour of the party under which not only the penalty was quashed but the said party has been completely exornerated. These are some of the landmarks in these proceedings carrying with them such peculiar features. The first petitioner herein is the Firm in question while petitioners Nos. 2 and 3 are the parties who are landed in these difficulties on account of having filed the Returns before the Income Tax Department signing the verification. The criminal complaint lodged by the Income Tax Officer A-11 Ward, Bombay against the three petitioners is the subject matter of Case No. 42-S of 1983 under sections 277, 278 and 276-C of the Income Tax Act, 1961 ('the Act') in the Court of the learned Metropolitan Magistrate, 28th Court, Esplanade, Bombay, where the learned Magistrate was pleased to issue process on all the counts which Order is being placed under challenge in this petition invoking the inherent powers of this Court under section 482 of the Code of Criminal Procedure, 1973.

2. The first petitioner is the Partnership Firm dealing in Import and Export of Cotton Textiles and also Commission Agent carrying on the said business in this metropolis. Initially, the second petitioner and one Ratilal D. Shah were the partners of the said Firm under the Deed of Partnership dated 7th September, 1951. The later however retired under the Deed of Retirement executed on July 15, 1970, and was replaced by the third petitioner constituting a new structure of the said partnership though continuing the same business. For the Assessment year of 1974-75, the Firm filed the Return of Income on June 29, 1974 which was signed by the second petitioner and it was accompanied by Profit and Loss Account and Balance Sheet. The income of the Firm was declared to the tune of Rs. 22,229/-. The concerned Income Tax Officer who had the jurisdiction to deal with the said case called for the accounts of the Firm for the said period. On production of the relevant books of account, the said Officer placed those under scrutiny on November 21, 1976 and he observed certain discrepancies in the Gujarati ledger and English ledger. On the scrutiny of the Statement of Account it was revealed that the Firm had credited Rs. 99,151/- in the Trading Account as cash incentive received by the Firm during the relevant period i.e. for the year 1974-75 vis-a-vis export of cotton textiles made to Middle East Countries. There is a small difference of about Rs. 2,000/- in this category in the Gujarati and English Ledger as the former suggests Rs. 1,41,984/- while the latter as Rs. 1,43,895/-. The Officer noted on the scrutiny of these accounts that out of the total amount of Rs. 1,43,895/- an amount of Rs. 44,743/- was transferred in the name of the ex-partner Shri R.D. Shah's Capital Account and thereby leaving the balance of Rs. 99.151/- shown in the Trading Account. The Income Tax Officer was of the opinion that the amount of Rs. 1,43,895/- was really the cash incentive received by the Firm for the export of textiles and as such it was nothing but the income of that firm and not of the individual partners and consequently it is the entire amount which was assessable as being in the possession of the Firm. Though this was detached on a scrutiny of the accounts and ledgers etc. still, no information about the transfer of the said amount of Rs. 44.743/- in favour of the retired partner to his capital Account which was out of the amount of Rs. 1,43,895/- as the total cash incentive received by the Firm were indicated in the profit and Loss Account and Balance Sheet that was produced along with the Return. In the same documents and the Returns, the cash incentive received by the Firm were shown to the tune of Rs. 99,151/-.

3. After undergoing this exercise of scrutiny of the relevant documents, the Income Tax Officer opined that the receipt of total cash incentive of Rs. 1,43,895/- was dishonestly and intentionally split up by the Firm and by that process, there has been a concealment of the income in that category to the tune of Rs. 44,743/-. Which obviously was flowing out of the construction of the situation as per the officer that this could not be credited in favour of the retired partner as this was deemed to be the income of the Firm. Armed with this material and the formulation of the opinion, the Assessment was complete under which the total income of the Firm was held at Rs. 74,563/- parallel to that the officer also initiated penalty proceeding under section 271(1)(c) of the Act.

4. In the second phase of the litigation, the Firm filed appeal before the Appellate Assistant Commissioner of Income-Tax, who however, upheld the finding of the Assessments Order of the Income Tax Officer vis-a-vis the addition of Rs. 44,743/- as the income of the firm. On the basis of the initiation of penalty proceedings, the matter was pursued after observing formalities and the Income Tax Officer with the consent of the Inspecting Assistant Commissioner of Income Tax levied a penalty of Rs. 44,473/- under section 271(1)(c) of the Act.

5. In the next round of litigation, the first petitioner Firm filed an appeal before the Commissioner of Income Tax (Appeals), but met with no success and the order imposing the said amount as penalty as also the finding about the concealment of the income came to be endorsed. The first petitioner Firm then preferred appeal against that order before the Income Tax Appellant Tribunal.

6. Before the appeal could be heard and disposed of on merits, the Income Tax Officer attached to 7th Income Tax Officer, A-11 Ward, Bombay assessment capacity has the complainant and filed private complaint in the Court of the learned Metropolitan Magistrate, 28th Court, Esplanade, Bombay, for offences under sections 277, 278 and 276 of the Act against the three petitioners on March 18, 1983 wherein the allegations, the substance of which is indicated hereinabove are reflected suggesting constitution of the said offences. In effect section 276-C relates to wilful attempt to evade tax, section 277 pertains to allegations of false statements in verification under the Act or Rules while section 278 relates to abatement of false returns which was perhaps made attributable to the petitioners Nos. 2 and 3 in the attempt to evade the tax.

7. A significant development came on the surface on or about January 20, 1984 after filing of the said criminal complaint. As indicated the Firm had preferred appeal against the order of penalty that was confirmed by the Commissioner of Income tax (Appeals), before the Income Tax Appellate Tribunal, Bombay Bench, being (I.T.A. No. 1078 (Bom)/1982). As the luck would have it, the Tribunal not only upset the order of the authorities below regarding the Assessment of tax and penalty but in terms negatived the finding of the Authorities below about the wilful concealment on the part of the petitioners in not/showing the correct income. In effect it was observed that having regard to the respective entries regarding the Firm's Account in the category of receipts of cash incentive and a transfer entry in the name of the retired partner Shri Shah though under the head as Capita income cannot be said to be a deliberate or wilfully misleading statement made by the Firm and the tenor of the order indicates in unmistakable terms that the mode of making the break up of amount of Rs. 1,43,895/- in the two amounts of Rs. 99,151/- credited in the Trading Account of the firm as Cash incentive and Rs. 44,743/- transferred in the Capital account of the retired partner and thereby showing only Rs. 99,151/- in the Firm's Account under the Head of Cash incentive cannot be said to be an incorrect mode of Account. On that basis, the Tribunal wholly exonerated the petitioners and the penalty sought to be levied by the authorities below was completely wiped out as being not sustainable. Significantly, the Department did not pursue the matter any further inspite of this decision and thereby at least ex facie impliedly accepted the same.

8. Thus armed with this Order of the highest Tribunal in this structure of the Income Tax Department as also on the basis of the plain reading of the complaint which essentially contains an element of accounting, the petitioners have moved this Court involving inherent jurisdiction of this Court under section 482 of the Code of Criminal Procedure for quashing of the proceedings as also for discharge to be recorded in favour of the petitioners on the ground that the complaint is not maintainable and in any event, there are no sufficient grounds to proceed against the petitioners.

9. Shri A.K. Desai, the learned Counsel for the petitioners in support of the petition predominantly canvassed that the recording of the Order by the Tribunal not only fully exonerating the petitioners but also recording an express finding that there has been no concealment of income or attempt in evading tax coupled with the implicit finding, though inferentially, that the mode of accounting may not be wrong, the criminal prosecution in the face of such events for the same entry in the accounts in unsustainable. The learned Counsel as additional plank submits that even de hors of this order the accounts and the relevant entries did not make any criminal offence whatsoever much less the finding of concealment, more so when the amounts of Rs. 99,151 and Rs. 44,743/- have been clearly shown in the accounts though with the break up, one in the name of the Firm and the other in the name of the retired partner and if combined together both make the precise figure of Rs. 1,43,895/- which even the Department accept as the maximum amount of cash incentive received by the Firm. The learned Counsel submits that maybe that the accounts and the ledgers were not produced along with the return, but those were produced immediately within a couple of days after those were demanded and all aspects were placed before the Officer annexed to these entries and as such there was no suppression whatsoever much less any wilful concealment motivated to evade the tax. The learned Counsel further submits that may be that this mode of account was not acceptable to the Department but that the Firm was justified in adopting this mode of accounting in view of certain legal positions and the ratios in certain decisions and therefore, it was obviously the product of a bona fide assertion of particular view point which could be legitimately taken up. The learned Counsel maintains that in reality this is the correct mode of accounting especially in view of the Clause 7 of the agreement execute between the Firm and the ex-partner. The learned Counsel even for the purpose of this proposition endeavoured to rely on certain observations of the Order of the Tribunal which also endorsed the view that the question about the mode of accounting may not be free from doubt and which could generate an honest difference of opinion between the Assessee and the Department, which however, is far away from the conclusion that the Assessee by such process wilfully concealed the income. In the final analysis the learned Counsel submits that continuing the criminal proceedings under these circumstances would be waste of time and energy and also would be and also to serve the ends of justice. Alternatively it was submitted that on the facts and circumstances of this case, there are obviously no sufficient grounds to proceed against any of the petitioners.

10. Shri A.R. Gupte, learned Counsel appearing on behalf of the complainant-Income Tax Officer, the Fourth Respondent herein, while countering these contentions submitted that for certain reasons no reference was filed in this Court against the Order of the Tribunal, may be because it was time barred, but that, according to the learned Counsel, would hardly make any difference in as much as any decision or observation by the Tribunal would not justify quashing of the proceedings. According to the learned Counsel, a decision arrived at by the Department even in exonerating a person cannot serve as a legal bar against filing and maintaining a criminal prosecution on the same set of allegations as according to him both run on separate tracks being independent of each other and one cannot over shadow the other. Therefore, according to him, notwithstanding the order of the Tribunal, the complainant can still endeavour to establish his case on evidence in the criminal proceeding. On merits, the learned Counsel submits that the mode of accounting adopted, by the petitioners was not innocuous or that innocent but was a deliberate one rather in the context of the fact that the accounts were not produced along with the Returns. In substance, the learned Counsel submits that the petitioners deliberately made this break up of the principal amount and thereby took a calculated risk or chance so that if those entries were accepted, the income of the Firm would have been reduced by an amount of Rs. 44,743/-, which scheme however, was frustrated due to so called industry of the Income Tax Officer who himself scrutinized the entire record in the account and found out the reality. According to him, the said total amount of Rs. 1,43,895/- is the income entirely of the Firm on the basis of cash incentive which even partially could not be diverted to any partner much less the retired partner and what is objected to is that this amount of Rs. 44,743/- was shown in favour of Shri Shah not under the head of cash incentive but under the head of Capital Account. According to learned Counsel, offence on all the three counts is prima facie made out. Lastly it was contended that this would not be a proper case to exercise inherent powers nor can it be said that there are no sufficient grounds to proceed against the petitioners and all these contentions can be canvassed by the petitioners in the trial. Shri S.S. Phanse, learned Public Prosecutor for the State has joined Shri Gupte in his submission and equally opposed the motion of the petitioners to quash the proceedings.

11. I have already indicated the factual structure as also the thrust of the controversy. A repetition about the historical part of events therefore can well be avoided. The question is posed at the threshold by Shri A.K. Desai that in view of the order of the Tribunal, the criminal case is not maintainable and it ipso facto gets exhausted would require scrutiny at this juncture. If this proposition spacious as it is formulated is accepted then the further probe in the merits of the matter may become unnecessary. If otherwise then the next question that logically would emerge would be whether on the facts and circumstances of the case can it be said that even ex facie any offence has been spelt out against the petitioners on any of the three counts and whether there are sufficient grounds to proceed against the petitioners in the criminal proceedings and if not, whether this would be a fit case to quash the proceedings or discharge the accused. Addressing the first question posed would be therefore, appropriate at this point of time.

Reliance was placed by both the sides on certain ratios in that category.

12. In Uttam Chand and others v. Income-Tax Officer, (Central Circle, Amritsar) : [1982]133ITR909(SC) a short judgment was delivered as:

'In view of the finding recorded by the Income-tax Appellate Tribunal that it was clear on the appraisal of the entire material on the record that Shrimati Janak Rani was a partner of the assessee-firm and that firm was a genuine firm, we do not see how the assessee can be prosecuted for filing false returns. We, accordingly, allow this appeal and quash the prosecution.'

13. It is true that in the said case, on the assessment of the material as the Tribunal found that the firm was genuine one and Srimati Rani was a partner of the said firm and it is equally true that more or less for the same subject that the assessee was being prosecuted which was knocked down by the Supreme Court. In M/s. Telu Ram Raunqi Ram and another v. Income Tax Officer, 'A' Ward, Hoshiarpur, and another Punjab and Harya na High Court had an occasion to deal with the similar situation where Uttam Chand's case (supra) was cited. The ratio however is slightly different though it is relied upon by the learned Counsel for the petitioners. It was essentially for the purpose of appreciating the ratio in Uttam Chand's case. Therein penalty was imposed against which appeal to the Tribunal was dismissed. The assessee filed an application for reference in the High Court and which was pending. The Department had lodged prosecution against the assessee. It was contended that it was premature inasmuch as application for reference regarding the same item was pending in the High Court and there was expectancy of getting a finding favourable to the assessee in which event the finding would affect the prosecution rendering it unsustainable and continuation of the prosecution during this period would be abuse of process of law. This contention was repelled and it was observed that criminal proceeding against the assessee cannot be stopped on mere expectancy as mere expectancy should not stand in the way of Criminal Court from proceeding in the matter. It was also held that the proceedings against the assessee at that stage may not be abuse of the process of the law and which require no stay to be granted. Though this conclusion was reached, the High Court observed that in case an order was passed in favour of the assessee during the pendency of the trial or even at the appellate or revisional stages then all those courts dealing in that matter would be required to give due regard to all those findings in case they were favourable to the assessee. In that context, relying on Uttam Chand's case, the High Court held that there is no bar as such and penalty proceedings can be launched as also prosecution. However, it was further clarified as settled principle that whatever findings that are recorded in the orders in assessment or penalty proceedings, those may not be binding on the Criminal Court while determining the guilt of the assessee. But a principle of good sense seems to have been granted in the aforesaid principal by settling that, in case the Tribunal comes to a finding in penalty proceedings that the assessee has not furnished inaccurate particulars or had not concealed his income then that finding has, in a way, been made to influence the mind of the Criminal Court in requiring it to drop proceedings. Uttam Chand's case was analysed on that scrutiny.

14. Shri Desai, the learned Counsel also relied on the decision of the learned Single Judge of this Court in Criminal Application No. 773 of 1982 decided on November 20, 1982 in support of the proposition. More or less the similar situation arose and the Income-Tax Tribunal recorded almost a similar order inter alia observing that there was no concealment of income though there could be a genuine difference of opinion between the Income-Tax Officer and the assessee regarding the taxability of an item which however, does not necessarily make the assessee guilty of default under section 271(1)(c) of the Act since that provision requires a wilful concealment. Relying on the observations in that Order, the learned Single Judge held that if the findings recorded by the Appellate Authority in the penalty proceedings are perused then it cannot be said that the complaint which is lodged against the assessee discloses an offence under section 277 of the Act. It was also indicated that there is a finality to that order in the sense that no appeal would lie against the Tribunal Order and therefore, the learned Single Judge was of the opinion that findings between the parties are read in the light of the provisions of section 277 of the Act, 'the Department cannot repeat the song of concealment of income against the petitioners'. Consequently it was held that the prosecution launched against the petitioners was unsustainable and it was quashed.

15. Shri Gupte, the learned Counsel for the Department, however, placed reliance on the ration of Asst. Customs Collector, Bombay v. L.R. Melwani : 1970CriLJ885 , in support of his contention that notwithstanding the finding or order by the Tribunal the prosecution is maintainable in Criminal Court. The Supreme Court in that context considered the principles of autre fois acquit and issue estoppel rule and when the same can be invoked. It was observed in that context as:

'In order go get the benefit of section 403 Criminal P.C. or Article 20(2), it is necessary for an accused person to establish that he had been tried by a Court of competent jurisdiction for an offence and he is convicted or acquitted of that offence and the said conviction or acquittal is in force. If that mush is established then only the accused is not liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, Criminal P.C. or for which he might have been convicted under section 273, Criminal P.C.

Criminal prosecution of the accused for alleged smuggling is not barred merely because proceedings were earlier instituted against him before the Collector of Customs which is not a prosecution nor the Collector of Customs a 'Court'. Therefore, the rule of autre fois acquit cannot be invoked. Neither the issue estopped rule is attracted. The issue estoppel rule is but a facet of the doctrine of autre fois acauit. Even though the accused was given benefit of doubt in earlier proceedings the decision of Collector of Customs does not amount to a verdict of a acquittal in favour of accused so as to attract the rule of issue estoppel.'

The Supreme Court in that context analysed the concept of 'prosecution' and ' punishment' indicating that the proceedings before the Sea Customs authorities was not prosecution and the order of confiscation was not a punishment, inflicted by the Court within the meaning of Article 20(2) of the Constitution and, therefore, the subsequent prosecution was not barred. As regards the second aspect, it was observed that the proceeding before the Collector of Customs was not a criminal trial and, therefore, the decision of the Collector of Customs does not amount to a verdict of acquittal. It was also observed that adjudication before a Collector of Customs is not a prosecution not the Collector of Customs a Court. Referring to Maqbool Hussain's, case : 1983ECR1598D(SC) it was indicated that when a person against whom proceedings had been taken by the Sea Customs authorities and order of confiscation of goods has been passed and if the same person is prosecuted subsequently before the Criminal Court for offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act, then the prosecution is not barred.

16. The learned Counsel for the petitioners on the basis of these different ratios submits that the moment an order is recorded by an authority of the Department exonerating a party, criminal prosecution on the same set of allegation initiated by the Department is not maintainable at all and, therefore, the learned Magistrate must dismiss the complaint only on that count even without application of mind to the merits. The other extreme end has been adopted by the learned Counsel for the Department who submits that the existence of such an order is irrelevant and also inadmissible and in any event, the Criminal Court cannot surrender its judgment to the authorities of the Department and that notwithstanding such an order, the Department can still endeavour to bring home the offence of the accused. The learned Counsel for the petitioners thereafter made an alternate submission that in any event, even if the extreme view is not taken, still, such a finding would be extremely relevant and should be given due weight and respect by the Criminal Court and if that is done then in the instant case, no offence is made out against the accused.

17. I am unable to endorse to either of the two extreme views propagated by both the sides. This view of mine would remain intact even in the face of the ratios discussed hereinabove. No reasons as such are assigned in Uttam Chand's case by the Supreme Court and the plain judgment barely mentions that in view of the finding by the Income-tax Tribunal about the genuineness of the firm, the prosecution cannot survive. The decision in Melwani's case (cited supra) is recorded by a Bench of the Supreme Court consisting of five Judges and which is obviously a larger Bench than the one which is cited in Uttam Chandan's case. It is well settled as discussed in Mattulal v. Radhe Lal, : [1975]1SCR127 and in Union of India v. K.S. Subramanian, : (1977)ILLJ5SC that in such a situation the decision given by a larger Bench unless overruled either expressly or impliedly would prevail. It is then significant to note that the decisions wherein the criminal prosecution has been quashed in view of the order of the authority of the Department essentially and in majority relate to proceedings initiated under the Income-Tax Act where in the penalty proceedings, the Tribunal or any other authority of the Department has recorded a finding accepting the plea of the assessee either about transaction or the entry in the accounts or existence of a firm and it is in that context that the various decisions ruled that the criminal prosecution may not survive. The orders of the department which are reproduced in some of the cases fully demolish any prospective offence under the Income-tax Act especially about the concealment of income or making false entry in the accounts. Significantly, even in Telu Ram's case (cited supra), the Punjab and Haryana High Court which had relied on Uttam Chand's case indicated that such a finding by the Department would be required to be given due regard by the Criminal Court. Therefore, the process while accepting the ratio in Uttam Chand's case in favour of quashing of the proceedings is not to the effect that the moment when the assessee is exonerated ipso facto the criminal proceeding must be quashed. But that the said finding should be; given due weight in Criminal Court, which may contribute in the finding of the Court to acquit the accused. Melwani's case pertained to the proceedings under the Sea Customs Act and the order which was sought to be made relevant was in the adjudication proceeding by the Collector of Customs. The Supreme Court however, has dealt with this aspect mainly on the rule of autre fois acquit and issue of estoppel and held that the criminal prosecution is not barred. In my opinion, the harmonious balance can be struck by accepting the proposition to the effect that it cannot be a rule almost of universal application suggesting that if there is an order by competent authority of the department against it, then criminal prosecution launched by the Department, may be predominantly from the same set of allegations must end in non-survival and as such, the accused cannot be tried on the forum of Criminal Court, but notwithstanding such an order, a criminal prosecution can still be maintainable and can be finally adjudicated upon by competent Criminal Court on its own merits in which event however, the finding on the parallel track given by the Department cannot be said to be irrelevant or inadmissible, but the Criminal Court shall consider the same thought in the limited field as one of the relevant and important items which may contribute; in formulating the final order in the criminal proceeding. This would be more so in as much as a case may arise where the Department can still adduce more evidence in the criminal proceedings, in other case some items of evidence may not have even been considered by the Department while giving that order. Existence of such a contingency in this category about the permissibility of continuing criminal proceedings can be available in certain fields of litigation one of which may be under the Customs Act when in an adjudication proceedings the accused may be exonerated, but inspite of it a criminal prosecution for offences under Customs Act and/or Foreign Exchange Regulation Act can still be successfully maintained. Much depends upon the facts and circumstances of each case. In contract a case may arise wherein the facts are placed in such a rigid straight jacket that there is no scope even for the Department to adduce additional evidence or to construe the evidence adduced before the Department in any other manner in the criminal proceedings which case may justify taking a serious note which may entail into recording order of acquittal. None the less in such a case also the acceptance of the said prospective evidence by the Criminal Court may merge in the process adopted by the Department in the proceedings on the parallel channel. In a fit case out-right non-maintainability of the prosecution can be conceived whereas in another case acquittal even on the same set of allegations may not be conceivable. None the less the undercurrent would be that it would not be proper to divest a Criminal Court of its jurisdiction and all this will embrace the further principle that such a finding on identical set of allegations and evidence should be given due weight and regard by the learned Magistrate while dealing with criminal case being alive to the reality that the department which has initiated the prosecution has exonerated the accused and have assigned reasons for the same which may appear unassailable under the situation in which case the further question must be alive in the mind of the Court that inspite of such a finding on merits, the same Department desires to prosecute the same accused on the same set of allegation and practically on the same set of evidence, which apparently tend to create a confusing situation. There would thus be kept in tact the principle that the Criminal Court cannot be made to surrender its judgment to the Department. The amalgam, therefore, would be that the rule will have to be made flexible depending on the facts and circumstances of each case.

18. As stated, most of the authorities pertained to the orders passed in penalty proceedings under the income-tax Act where criminal prosecutions are also launched on parallel facts. In all such cases, the nature of allegations as also the evidence travels within a circumscribed limit without there being any addition as in most of the cases there is a controversy about an entry in the account or omission in the accounts in order to conceal the income. Most of the documents which are relied pertain to the written account books etc. and the other documents in support of the assessee which are fully examined by the Taxing Officer and, therefore, apparently, same set of evidence would be before the Criminal Court with the same questions being posed for adjudication. It is in that context that a serious note deserves to be taken of the fact that the Taxing Officer who is mainly concerned with the assessment part of the litigation on examination of the relevant documents and in which process all the material facts and shades not only touching the aspect of assessment and penalty but indirectly of the other aspect integrally connected with the feature of wilful concealment of income etc. which are capable of constituting some offence under the Act held that there is no concealment much less wilful concealment as prescribed under the Act, then, a prosecution for an offence of wilful concealment would be very much mutilated and is bound to be affected predominately by this finding. Such cases are typical as relating to the proceedings under the Income-tax Act.

19. It is with this prelude that we have to assess the facts and circumstances in the instant case. It is alleged that the firm had received a total cash incentive to the tune of Rs. 1,41,984/- which was the income exclusively of the firm. As against that instead of showing the entire amount in that behalf, the petitioners are alleged to have shown an amount of Rs. 99,151/- under that head. Along with Return the accounts were not filed. The complainant Income-Tax Officer would have it that he called upon the assessee to produce the account and he claims that it was his industry which revealed that this was incorrectly shown. Even giving credit to his so called industry, still complexion of the situation is not charged. According to the complainant, an amount of Rs. 44,743/- was shown as having been transferred in the name of the ex-partner Shri R.D. Shah and that too under the head of capital account to which the individual partner was not entitled. It is this mode of making entries coupled with non-production of the accounts at the initial stage which according to the complainant amounts to concealment of the said among of income of Rs. 44,743/- which if added to the Firm's income would entail into enhancing the assessment of the Firm. The Appellant Authority also endorsed this mode of reasoning of the Income-tax Officer.

20. In that context it must be noted that after the Return was filed, the hearing was posted on 20-11-1976 before the Income-tax Officer and the Assessment Order was passed on 24-11-1976 and in between, the account books and all other relevant documents were produced before the Officer as soon as those were requisitioned by him on 20-11-1976. There was thus, no delay nor any oblique motive in not producing the account books along with the Return but those have been legitimately produced at the hearing. The total cash incentive is to the tune of Rs. 1,41,984/-. However, the amount in that category received by the Firm upto 30th June, 1974, which is the relevant period, is to the tune of Rs. 89,487/-. The amount in question viz., Rs. 44,743/- is precisely the half of the said amount of Rs. 89,487/-. Admittedly this amount was not suppressed. The only lapse on the part of the petitioners was to make a break up of this entire amount into two parts. Even if Rs. 1,41,984/- is considered, on deducting the amount of Rs. 44,743/- which is 50% of the amount of Rs. 89,487/- and to which the ex-partner under the agreement was entitled, the balance comes to Rs. 99,151.00 and this entire amount is shown in the firm's account. Looked at from any angle therefore, the total amount of cash incentive received by the firm has been correctly shown at two different places with the break up and this has not been suppressed. There is quite a cogent reason as suggested by the petitioners for the same. The Deed of Retirement is dated 15th July, 1979 between the ex-partner Shri R.D. Shah and the continuing partner-second petitioner. Clause 7 of the said agreement reads as:

'7. It has been expressly agreed between the parties hereto that the Continuing Partner shall pay and the Retiring Partner shall be entitled to received 50% of the profits and receipts in respect of cash incentives, drawbacks, benefits, nomination premium etc., and such other benefits as the firm would be entitled to in respect of exports made by the firm prior to and upto 30th June, 1972.'

The remaining portion is not germane. This clause therefore, makes it clear that the Retiring Partner was entitled to 50% of the cash incentives and this was agreed upon between the parties. Whether this was permissible in law in the strict sense under the head of cash incentives is really not of primary importance, though apparently there is nothing to discard the maintainability of this proposition. However, the fact remains that this was a specific agreement between the two and the date mentioned therein as 30th June, 1972 tallies with the date in question and the amount in question and the amount in question placed in the account of the retiring partner as being exactly 50% of the cash incentives received upto that date and this ratio of 50% is prescribed under the agreement itself. That is how, the circuit is complete. It is very significant to note that it is not even faintly suggested on behalf of the Department that an amount of Rs. 44,743/- was due and payable to the Retiring Partner Shri R.D. Shah or any other account not is it suggested that this amount was placed in his account in addition to the 50% of the cash incentives. Even on this forum, the learned Counsel for the Department, Shri Gupte had to concede this position, though his objection is entirely different viz., that the amount received by the Firm as Cash Incentives is the exclusive income of the firm and no individual partner is entitled to it and the second objection is that it has been wrongly put in the name of the ex-partner under the head as Capital Account and not on account of his share in cash incentive as per the agreement and this according to the learned Counsel was an attempt to evade the tax of the firm by reducing the income to the tune of Rs. 44,743/- and if the Income-tax Officer had not scrutinised the account, this would have gone undetected. The objection on both these counts is wholly unsustainable and actually misconceived. Reasons therefore are already indicated. It is one thing to say that the individual partner is not entitled to share in the cash incentives as it is the exclusive income of the firm but it is entirely different thing to say that by reason of making such break up there was a deliberate attempt as concealment of the firm's income. It is also difficult to impute any sinister or oblique motive in showing the same amount in the ex-partner's account under that particular head and thus not clarifying it as pertaining to the cash-incentive. May be in a case, this was an outcome of incorrect reading of the situation and there may or may not be justification for such a break up. However, it can hardly be called as the concealment much less as the wilful concealment.

21. In that behalf reliance is placed by Shri A.K. Desai, on a decision in M/s. Y. Industries, Junagadh v. The ITO Ward A, Junegadh, reported in Tax and Planning Journal Volume 19, decided in ITA No. 1869/Ahd/80. Therein a similar situation, though not identical, arose and a different view was placed before the Tribunal for distributing the income in favour of the partners though the Income-tax Officer had excluded that income as that of the firm. There also it was stipulated between the partners at the time of dissolution that the continuing partners will be allowed to take over the business including the assets and liabilities of the dissolved partnership as it was agreed that any rebates or any other concessions or receipts from Government in respect of the exports made during the subsistence of the partnership shall be shared by all the partner who were partners immediately before the dissolution of the firm. In that context it was observed as:

'All the partners of the old firm had the enforceable right in law against the assessee to receive Rs. 53,577/- out of the amount received by the assessee as it was so received by the assessee on behalf of all the persons who were the partners immediately before the dissolution.'

In the analysis then it was observed as follows:

'Secondly under the dissolution deed an enforceable right was created in favour of the outgoing partners and therefore, the said right clearly supervened the accrual of income in the hands of the assessee. The amount therefore, was diverted before it reached the assessee's till.'

It is on that count that the said amount was of the firm's income. Shri Desai, the learned Counsel submits with full justification that the petitioners were aware of such situation that could legitimately exist in law, though that petition merely high lighted that situation. If that be so, then the petitioners cannot be saddled with the condemnation that this was deliberately so done by them in order to reduce the income of the firm and by which there was a wilful concealment. The petitioners were propagating one school of thought in that behalf so that if the entries are made in consonance thereof which could be acceptable, then there is no question of any concealment much of wilful concealment. Support was also sought to be derived from the ratio in Devanrajulu Chetty & Co. v. Commissioner of Income-Tax, Madras, reported in : [1950]18ITR357(Mad) , while computing and appropriating the profits of the new firm and posing a question about the share of profits paid to old partners being allowable as business expenditure the learned Judges observed that:

'Under section 39 of the Partnership Act, the retiring partners had a right to a share of those profits which were made by the new firm with the assets of the old firm and consequently, that part of the profits payable to the old partners by the new firm under an obligation imposed by law was not the truth, the income, profits and gains of the new firm.'

22. Shri A.K. Desai, learned Counsel also rightly placed reliance on the ratio in Burmah Shell O.S. & D. Co. of India v. Income-Tax Officer, Central Circle, XXIII, Calcutta and others : [1978]112ITR592(Cal) . wherein it is observed as:

'The act of raising the legal contention which the petitioner raised before the Income-tax Officer and which according to the petitioner are sound and tenable and are still being pursued by the petitioner in appropriate proceedings, could not constitute fraud or gross or wilful neglect on its part. Legal contention bona fide raised, whether it is ultimately accepted or rejected, will not generally be an act of fraud or gross or wilful negligence. As there is no fraud or gross or wilful neglect on the part of the petitioner, the provisions contained in the Explanation to section 271(1)(c) of the Act cannot be attracted, even if it cannot be otherwise said that the said Explanation applies because of the discrepancy between the income returned by the petitioners and the income assessed by the Income-tax Officer.'

This supports the proposition read in the context of the facts and circumstances as also the view taken by the Income-tax Tribunal in M/s. Y. Industries, Junagadh's case (cited supra) that the petitioners were legitimately canvassing a legal proposition which cannot be said to be apparently not sound and if that be so, then there is no fraud or gross or wilful neglect nor there is any wilful concealment.

23. As regards the second count of objection which is elaborately dealt with earlier which can be recapitulated that the accounts and various documents were placed before the Income-tax Officer within a couple of days after they were requisitioned, the only omission of not producing those along with the return before the hearing cannot justify raising of such an objections. Merely emphasising that it was the so called industry of the Income-Tax Office that the correct state of affairs was disclosed, it cannot mean that even by such an industry any fraud or concealment was disclosed. What was disclosed was very much in existence in the shape of the two entries and what was concluded was on the basis of those entries with certain interpretation was made by the Income-tax Officer. There is no substance in that contention either.

24. In the face of these features practically steering in the face, it is impossible to accept that any offence has been made out even in the ex facie field against any of the petitioners. The Scheme of the relevant provisions of the Act would be relevant at this juncture. Under section 271(1)(c), penalty can be levied if the Officer is satisfied that the assessee has concealed the particulars of his income. Section 276-C relates to wilful attempt to evade the tax and which describes punishment. However, the overriding principle is expressed in the qualification that even assuming that there is an attempt of evading the tax, still to make it punishable it must be wilful attempt. 'Wilful' has a peculiar characteristic indicating the guilty mental State of the party. Section 277 relates to the allegation of false statement in verification. There is also a qualification in that it is not only the falsity of statement which is the governing factor inviting punishment but the statement should be much 'which is false' and which he either 'knows or believes to be false or does not believe to be true. In other words, such statement should be made deliberately with the full knowledge or belief of its falsity. It is worthwhile noting that an Explanation to section 271(c) as appended is very material, under which a burden is cast on the assessee to show that the Return of Income shown was without any fraud or gross or wilful neglect. Having regard to all these features, there is utter absence of any fraud or gross or wilful neglect or wilful concealment or making a false statement on verification knowing, or believing it to be false. Consequently none of these provisions are applicable. It need not be restated that in a criminal prosecution when the mens rea is an ingredient of an offence expressly made by the Legislature, then that part must be established mainly on circumstances in the absence of which, the other bare facts may not create any criminal offence. In the first place, no criminal offence has been made out under either of these counts. If at all any burden is shifted and cast upon the petitioners, then they have successfully discharged the same. It would therefore, be a proper point of time to consider the observations of the Tribunal which exonerated the petitioners though this is being considered as the last item. The order in so far as it is relevant, reads as under:

'On a careful consideration of the submissions urged on both the sides, in the light of the materials placed before us, we are unable to agree with the Revenue that there was any concealment of income or furnishing of any inaccurate particulars of such income by the assessee to justify imposition of a penalty under section 271(1)(c) of the Act...... However, we are satisfied that the assessee has discharged the burden of proof placed on it by the said Explanation to section 271(1)(c) to show that there was no fraud or gross or wilful neglect on its part in returning correct income.'

In respect of the factual aspect, the Tribunal observed as:

'The facts of the case clearly established correct income. The facts of the case clearly established that the assessee has credited the cash incentives received by it during the year under appeal in its cash incentives account. The total of cash incentives received by it during the year amounted to Rs. 1,43,894.50 out of which Rs. 89,487.74 related to the period ending on 30-6-1972. A copy of account relating to cash incentives in the books of the appellant-firm shows that the debit of Rs. 44,743.87 to Shri R.D. Shah Capital A/c.' on 30-6-73, and that the balance of Rs. 99,151/- in this account is transferred to profit and loss account. A copy of the partners' capital account filed along with the return clearly specifies this amount of Rs. 44,743/- as other credits in the account of Ratilal Shah. The Department does not dispute this factual position, not the position that Shri Ratilal Shah is entitled to received 50% of the cash incentives amounting to Rs. 89,487.74/- for the period ending 30-6-1972.'

After considering Clause 7 of the Agreement, the Tribunal observed as:

'As per the above clause of Agreement, the appellant firm had credited 50% of the cash incentives received on behalf of the earlier firm, to the account of the retired partner Shri R.D. Shah. All these facts have been placed by the assessee before the departmental authorities and no information has been withheld by the assessee from the department. On these materials, it has to be held that there is no fraud or gross or wilful neglect involved on the part of the appellant in returning the correct income since the entire facts and figures have been placed by the assessee before the department.'

As regard the question whether this amount could be transferred to the account of the individual partner, the Tribunal observed as:

'The question whether the amount of Rs. 44,743/- represented the income of the appellant or not is a debatable question, on which there can be honest difference of opinion between the appellant and the department. But that does not mean that there was any intention on the part of the appellant either to conceal its income or to furnish inaccurate particulars of such income.'

The Tribunal further observed as:

'The appellant has displaced the presumption raised against it by the Explanation to section 271(1)(c) of the Act and that, therefore, no penalty is leviable against the appellant either for concealment of income or for furnishing of inaccurate particulars of such income. Accordingly, we cancel the penalty imposed by the Income-tax Officer.'

Shri Gupte, the learned Counsel for the Department submits that the amount in question has not been shown by the firm in Part III of the Income-tax Returns and which indicates the intention of the firm to conceal the income. Shri A.K. Desai, the learned Counsel for the petitioners however, counters this argument and submits that in Part III of the Income-tax Return, some other type of income, such as agricultural income etc., is required to be mentioned and not this type of income. It was also suggested as mentioned in the Assessment Order that the Firm had sold goods even before the Firm was reconstituted though only the payment was received subsequently and as such these goods could not be treated as stock-in trade of the Firm as reconstituted firm. Shri Desai, the learned Counsel for that purpose relies on Clause 7 of the agreement. It is not necessary to multiply the illustrations especially when the foundation of the petitioners' contention is fully acceptable.

25. The factual aspect is applicable to all the three provisions which are sought to be attracted and not restricted to section 271(1)(c) of the Act and therefore, on these facts and material none of those three provisions are attracted at all. As rightly observed by the Tribunal, the question whether there could be such a break up is a debatable one and there can be honest difference of opinion between the authorities and the assessee. That however, does not bring them under the clutches of the provisions of the Act much less visiting with penal consequences. As stated, such an interpretation which is canvassed by the petitioners could be available to them on the basis of various ratios of decided cases and canvassing as a question of law in good faith it could not be visited with any penalty under the Act much less any punishment under the criminal jurisprudence.

26. I am tempted to observe that the facts in the instant case are typical making it clear that the observations of the Tribunal would have direct impact on the issue involved in the criminal prosecution, more so when the maximum evidence that could be relied upon by the prosecution was placed before the Income-tax Officer by the petitioners and it was examined by the authorities including the Tribunal. The peculiarity further lies in the fact that substantially everything depended on the said two factors about the mode of accounting. In fact, this would be relevant consideration in the criminal prosecution for the same set of allegation for the same set of material and for the same set of evidence to be adduced and as such, there can hardly be any scope for any other view than the one taken by the Tribunal. It may be incidentally observed with justification that the relevant provisions stipulate the nature of the Act which tends to concealment or wilful neglect or fraud vis-a-vis the income and that it is supplemented with the motive to persuade the Department, on the basis of any such fraudulent representation, to accept the Return and thereby to evade payment of additional tax. All this is with reference to Income tax Officer while processing the Return. Significantly, the Tribunal not only negatives such a State of affairs against the Department and in favour of the petitioners but in terms ruled that all the relevant material and all the cards were placed before the authorities meaning thereby that there was no attempt to mislead the Department further holding that the mode of accounting was not fraudulent there being no wilful neglect or concealment as also holding that if any burden is shifted on the petitioners, then it is satisfactorily discharged by the petitioners meaning thereby that the petitioners' explanation in that behalf has been fully accepted. If this is the assessment of the situation by the highest authority of the Department, then it must have the necessary impact on the proceeding when the Department almost in the second round tends to go through the same exercise once again. The peculiarity of the situation tends and formulate an outcome that the first authority rejected the petitioners' plea which view was completely upset by the highest authority in the structure whereafter instead of challenging it on proper forum or accepting it, the same authority of the first instance by such circuitous mode almost disputes the correctness of the orders of the Tribunal though ostensibly initiating a separate proceeding on different forum. All this under the circumstances sounds very odd. Under the circumstances therefore, there is no propriety of continuing this prosecution as it would sheerly be waste of time, energy as also abuse of process of law. Such a course would also be essential in the interest of justice.

27. Shri Gupte, the learned Counsel for the Department and Shri Phanse, the learned Public Prosecutor for the State submitted that this is not a fit case of exercise inherent jurisdiction to quash the proceeding as the complaint is not of such type which deserves to be quashed on its plain reading and secondly this is not a fit case of discharge. In support of this proposition, reliance was placed on some of the decisions. However, the facts are obviously distinguishable and would not be applicable to the instant case. Thus, for instance, reliance was placed in the case of Nagawwa v. Veeranna : 1976CriLJ1533 wherein certain principles are laid down when the proceedings can be quashed. Similarly, it has been observed in Hareram v. Tikaram : 1978CriLJ1687 that the High Court cannot launch on a detailed and meticulous examination of the case on merits and set aside the order of Magistrate directing issue of process against certain persons. Shri Gupte, the learned Counsel also placed reliance on the division of this Court in Jacob Harold v. Vera Aranha wherein it is enunciated that the Magistrate at the stage of issue of process is not to examine the correctness or the probability or improbability of individual items of evidence on disputable grounds, but the existence or otherwise of a prima facie case on the assumption that what is stated in the complaint is true. There can hardly be any dispute about the guidelines prescribed in various ratios. However, the facts in the instant case are entirely different. Even the plain reading of the complaint makes it clear that no prima facie case has been made out against the petitioners and thus, it would falls squarely in the category envisaged by the Supreme Court in Nagwwa's case (cited supra) as also in the case of R.P. Kapur v. State of Punjab : 1960CriLJ1239 . It cannot be said by any yard stick that there is sufficient ground for proceeding against the petitioners as contemplated by the Code of Criminal Procedure. Further more, it has been observed in State of Karnataka v. L. Muniswamy : 1977CriLJ1125

'In the exercise of the wholesome power under section 482, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed.'

It is further observed therein that for the purpose of determining whether there is sufficient ground for proceeding against the accused, the Court possess comparatively wider discretion in the exercise of which it can determine the question whether the material on record is unrebutted in such on the basis of which a conviction can be said reasonably to be possible. Even assuming that at the threshold of the proceedings the question of possibility of conviction may or may not be relevant, still even on the broader platform, the question of there being sufficient grounds to proceed against the petitioners will have to be answered in the negative and firmly in favour of the petitioners and if that be so, then the issuance of process being fully unjustified will have to be upset. I may incidentally observe that the entire matter is unfolded which requires no further evidence or material and all the facts are practically unconrtroverted. If that be so, then apart from any other considerations, in the face of typical facts and circumstances of the case, there is no propriety of sending back the material to the trail Court for proceeding further whether one styles it as quashing of the proceeding or discharging the accused, since the net result will be the same. The Scheme of the Code though contemplates different quantum of requirement at different stages of a criminal proceedings, still the concept of the requirement at the threshold necessary to issue process and to proceed against an accused person is well-defined and real in proper perspective it becomes manifest that the facts and circumstances do not constitute sufficient ground to proceed. Looked at from any angle, therefore, the prosecution must fail even at the threshold.

28. A thought justifiably lingers. Permissibility and propriety or desirability of initiating and maintaining a separate proceeding have different fields and prescribed areas and both should not be confused or intermingled with each other. The insistence to continue the proceeding as also the vigorous contest offered in this petition by the Department does not maintain the harmony of the situation whereas the course otherwise if adopted by the Department, under the peculiar facts and circumstances of the case, would have infused more charm. Intelligent inferences can be many. It is however unnecessary to undergo any such exercise in view of the firm finding finally reached on the merits of the controversy. Any way, this is only incidental. The petition, therefore, succeeds.

29. Rule is made absolute. The proceeding of Criminal Case No. 42/S of 1983 pending on the file of the learned Magistrate, 28th Court, Esplanade Bombay, is quashed and the impugned order of issuance of process is set aside. The complaint is dismissed and the proceeding is terminated. The petitioners are discharged.

Rule made absolute.


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