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Commissioner of Income-tax Vs. Onkar Nath and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Revision No. 507 of 1982
Judge
Reported in[1985]151ITR744(P& H)
ActsIncome Tax Act, 1961 - Sections 292A
AppellantCommissioner of Income-tax
RespondentOnkar Nath and anr.
Appellant Advocate Ashok Bhan and; A.K. Mittal, Advs.
Respondent Advocate J.S. Bawa, Adv.
Excerpt:
.....by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to..........year involved was earlier to the coming into force of section 292a of the i.t act. although, in my view, the benefit of probation should not have been given to the respondents by the appellate court in view of the aforesaid provision, since the matter pertained to the assessment year 1968-69 and the respondents have been given the benefit of probation, it would not advance the interests of justice, if at this stage, after lapse of so many years, the respondents are sentenced to imprisonment. the respondents are first offenders and the appellate court while giving them the benefit of probation has observed that 'keeping in view the fact that the appellants have made a clean breast of their guilt before the trial court and had thrown themselves at its mercy, the ends of justice would be.....
Judgment:

Ajit Singh Bains, J.

1. The respondents were convicted and sentenced by the learned Sub-Divisional Judicial Magistrate, Pathankot, vide his judgment and order dated November 21, 1980, us under:

OnkarNath - respondent :

U/s. 277, I.T. Act, 196l.

R.I. for six months.

U/s. 193, IPC.

R.I. for six months and to paya fine of Rs. 1,000 or in default of payment of fine, to undergo further R.I.for two months.

U/s. 465, IPC.

R.I. for nine months.

U/s. 471, IPC.

R.I. for nine months.

KaliDass-respondent :

U/s. 278, 1.T. Act, 1961.

R. I. for six months.

U/s. 193, IPC.

R.I. for six months and a fineof Rs. 1,000 or in default of payment of fine, further R.I. for two months.

U/s. 465, IPC.

R.I. for nine months.

U/s. 471, IPC.

R.I. for nine months.

On appeal, the learned Ist Additional Sessions Judge, Gurdaspur, maintained the conviction of the respondents and set aside their sentence of imprisonment and fine but gave them the benefit of probation under the Probation of Offenders Act, 1958, and ordered that they be released on probation on their furnishing bonds in the sum of Rs. 3,000 with one surety each in the like amount, undertaking to appear and receive the sentence as and when called upon to do so by the court and to keep peace and be of good behaviour in the meantime. Each of the respondents was also directed to pay Rs. 1,000 to the State as litigation cost. The Commissioner of Income-tax has challenged the aforesaid order of the appellate court by way of this revision petition.

2. The ground taken by the Commissioner is that the impugned order is contrary to the express provisions of the statute, i.e., Section 292A of the I.T. Act, according to which nothing contained in Section 360 of the Code of Criminal Procedure, 1973, or in the Probation of Offenders Act, 1958, shall apply to a person convicted of an offence under the I.T. Act, unless that person is under 18 years of, age.

3. It is true that under Section 292A of the I.T. Act, 1961, the benefit of probation cannot be allowed to a person who is convicted of an offence under the I.T. Act and who is above 18 years of age at the time of the commission of the offence. But Section 292A was inserted in the I.T. Act, 1961, by theTaxation Laws (Amendment) Act, 1975, with effect from October 1, 1975, while the offence in question was committed by the respondents prior to that in September, 1967 or July, 1968. It is also true that when the prosecution against the respondents was launched in the year 1980, the aforesaid Section 292A was in force and the conviction was recorded after the coming into force of that provision regardless of the assessment year involved. However, the assessment year involved was earlier to the coming into force of Section 292A of the I.T Act. Although, in my view, the benefit of probation should not have been given to the respondents by the appellate court in view of the aforesaid provision, since the matter pertained to the assessment year 1968-69 and the respondents have been given the benefit of probation, it would not advance the interests of justice, if at this stage, after lapse of so many years, the respondents are sentenced to imprisonment. The respondents are first offenders and the appellate court while giving them the benefit of probation has observed that 'keeping in view the fact that the appellants have made a clean breast of their guilt before the trial court and had thrown themselves at its mercy, the ends of justice would be met if they are given the benefit of probation'. For the reasons recorded, this petition is dismissed.


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