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Friends Union Oil Mills and ors. Vs. Income-tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKerala High Court
Decided On
Case NumberCrl. M.P. Nos. 89 and 90 of 1975
Judge
Reported in[1977]106ITR571(Ker)
ActsIncome Tax Act, 1961 - Sections 271(1), 271(4A), 274(2), 277 and 279(1A); Indian Penal Code (IPC), 1860 - Sections 193 and 196; Code of Criminal Procedure (CrPC) , 1973 - Sections 195(1), 220, 245(2), 401, 468(2), 473 and 482; Economic Offences (Inapplicability of Limitation) Act, 1974 - Sections 2
AppellantFriends Union Oil Mills and ors.
Respondentincome-tax Officer and ors.
Appellant Advocate P.V. Aiyappan,; N.K. Sreedharan and; M.A. Pai, Advs.
Respondent Advocate M. Prabhakaran Nair,; Jose K. Kochupappu and; T.M. Chand
Excerpt:
.....under act of 1961 challenged - benefit of exemption from prosecution available only if reduction of penalty made by commissioner - reduction of penalty in present case made by tribunal - petition devoid of merit and dismissed. - - 1. this petition raises questions of law, which at the first flush appear to be tenable, but which on closer scrutiny fail as being devoid of merits. 20,000. penalty proceedings were, therefore, initiated, on being satisfied that the petitioners had concealed particulars of their income as contemplated under section 271(1)(c) of the income-tax act, 1961, for short 'the act'.notices were issued to the petitioners directing them to pay penalty as provided for under section 271(1)(iii) of the act. ' in this case, the return concealing the entire income..........averments to enable the court to extend the period of limitation under section 473 of the code. the petitioners have a formidable difficulty in seeking the benefit of section 468 of the code in view of the provisions contained in section 2 in the economic offences (inapplicability of limitation) act, 1974 (act 12 of 1974). section 2 of this act reads as follows : '2. nothing in chapter xxxvi of the code of criminal procedure, 1973 (act 2 of 1974) shall apply to- (i) any offence punishable under any of the enactments specified in the schedule; or (ii) any other offence which, under the provisions of that code, may be tried along with such offence, and every offence referred to in clause (i) or clause (ii) may be taken cognizance of by the court having jurisdiction as if the.....
Judgment:

Khalid, J.

1. This petition raises questions of law, which at the first flush appear to be tenable, but which on closer scrutiny fail as being devoid of merits. This petition is at the instance of the accused, seven in number, in C.C. No. 439 of 1974 before the Chief Judicial Magistrate's Court, Trichur. A complaint was filed by the Income-tax Officer, F-Ward, Trichur, before the said court under Section 277 of the Income-tax Act of 1961 and Sections 193 and 196 of the Indian Penal Code. The first accused is a firm and accused Nos. 2 to 7 are its partners. In paragraph 2 of the complaint it is stated as follows:

'The complaint is filed at the instance of the Commissioner of Income-tax, Kerala-II, Ernakulam, and a copy of the authorisation under Section 279 of the Income-tax Act, 1961, is herewith filed.'

2. The petitioners filed an application before the court below under Section 245(2) and 482 of the Code of Criminal Procedure, 1973 (Act 2 of 1974), for short the Code, for their discharge, on the ground that the cognizance of offence under Sections 193 and 196 of the Penal Code is barred under Section 468(2)(c) of the Code. The Chief Judicial Magistrate passed an order on January 7, 1975, overruling the objections raised by the petitioners. It is this order that is virtually in challenge in the presentpetition. The petition is filed under Sections 397 and 401 of the Code, which are the relevant sections for filing a revision. Perhaps, to meet an argument against the maintainability of the revision, based on Section 397(2) of the Code, an attempt is made to masquerade the petition as one under Section 482 of the Code also.

3. The preliminary objection raised by the learned counsel for the revenue is that this revision is not maintainable since this, in effect, is a revision petition against an order passed by the court below at an interlocutory stage. I think this objection has to be upheld. However, I do not think it proper to dismiss this Crl. M.P. on that ground alone. Various questions of law are raised regarding the non-maintainability of the complaint and the absence of jurisdiction in the court in taking cognizance of the offence against the accused. These objections, if sustainable, might attract the jurisdiction of this court under Section 482 of the Code.

4. The facts of the case relevant for our purpose, are as follows : The 2nd accused acting for the firm, M/s. Friends Union Oil Mills, Cherup, Trichur District, filed a return before the Income-tax Officer, E-Ward, Trichur. It was discovered that there was concealment of income to the tune of more than Rs. 20,000. Penalty proceedings were, therefore, initiated, on being satisfied that the petitioners had concealed particulars of their income as contemplated under Section 271(1)(c) of the Income-tax Act, 1961, for short 'the Act'. Notices were issued to the petitioners directing them to pay penalty as provided for under Section 271(1)(iii) of the Act. Thereafter, this prosecution was launched under Section 277 of the Act. The original authority for imposition of penalty under the Act is the Income-tax Officer. Sometimes the Income-tax Officer refers the case to the Inspecting Assistant Commissioner for the purpose of imposition of penalty. This is provided for in Section 274(2) of the Act. This is when concealment exceeds a sum of Rs. 25,000. In this case, the concerned Income-tax Officer referred the case to the Inspecting Assistant Commissioner under Section 274(2) of the Act. Originally, penalty was fixed at Rs. 20,000. In appeal to the Tribunal, the penalty was reduced to Rs. 10,000 by the Tribunal.

5. The contention raised on behalf of the petitioners before me is that the prosecution under Section 277 is barred, since it is hit by Section 279(1A) of the Act, which reads as follows :

'(1A) A person shall not be proceeded against for an offence under Section 277 in relation to the assessment for an assessment year in respect of which the penalty imposable upon him under Clause (iii) of Subsection (1) of Section 271 has been reduced or waived by an order under Sub-section (4A) of that section.'

6. This argument cannot stand since the protection contained in Section 279(1A) is applicable only when the Commissioner of Income-tax, for reasonsmentioned in Section 271(4A), reduces the penalty in favour of the assessee. The petitioners have wrongly stated in ground No. 4 that the penalty was reduced under Section 271(4A). In the instant case the reduction was by the Tribunal and not by the Commissioner. Therefore, the benefit conferred under Section 279(1A) of the Act is not available. Hence, the contention that the prosecution is barred by Section 279(1A) has to be rejected.

7. The second contention raised is that the offence under Section 277 of the Act cannot be tried along with Sections 193 and 196 of the Penal Code since it could not be said that these offences form one series of acts so connected together as to form the same transaction, I do not think any argument is necessary to repel this contention since the ingredients of the offence under Section 277 of the Act, to a large extent, overlap the ingredients of Sections 193 and 196 of the Penal Code, and, therefore, they are connected together to form the same transaction and can be tried at one trial under Section 220 of the Code.

8. The third argument advanced is that the prosecution is barred by limitation. The argument is based on the new Section 468(2) of the Code. Section 468 reads as follows :

'468. Bar to taking cognizance after lapse of the period of limitation :--

(1) Except as otherwise provided elsewhere in this Code, no court shall take cognizance of an offence of the category specified in Sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only ;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.' In this case, the return concealing the entire income was filed on January 6, 1971, and the prosecution was launched only on November 14, 1974. If the above section were to apply in this case, the prosecution is clearly barred by time. It is also contended that at least the complaint should have contained necessary averments to enable the court to extend the period of limitation under Section 473 of the Code. The petitioners have a formidable difficulty in seeking the benefit of Section 468 of the Code in view of the provisions contained in Section 2 in the Economic Offences (Inapplicability of Limitation) Act, 1974 (Act 12 of 1974). Section 2 of this Act reads as follows :

'2. Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (Act 2 of 1974) shall apply to-

(i) any offence punishable under any of the enactments specified in the schedule; or

(ii) any other offence which, under the provisions of that Code, may be tried along with such offence,

and every offence referred to in Clause (i) or Clause (ii) may be taken cognizance of by the court having jurisdiction as if the provisions of that Chapter were not enacted.'

9. Schedule to Section 2 of the Act contains various enactments, including the Indian Income-tax Act, 1922, and the Income-tax Act, 1961. Section 468 occurs in Chapter XXXVI of the Code. Clause (i) of Section 2 of the above Act states that the provisions of Chapter XXXVI shall not apply to enactments contained in the Schedule. Clause (ii) of Section 2 says that the provisions of Chapter XXXVI shall not apply to any other offence which under the provisions of that Code may be tried along with such offence. It is, therefore, clear that Section 468 will not apply to a prosecution under the Income-tax Act, 1961.

10. The second limb of the argument, desperately put forward by counsel for the petitioners, is that since Sections 193 and 196, Indian Penal Code, are also included in the complaint, the complaint is not saved by Section 2 of the above Act. According to him the words occurring in Clause (ii) of Section 2, viz., 'under the provisions of that Code' relate to the Indian Income-tax Act and not to the Code of Criminal Procedure, and, therefore, Section 468 will apply only to prosecutions launched under the Indian Income-tax Act. This contention has only to be stated to be rejected, since if the words 'under the provisions of that Code' related to the Income-tax Act, such a clause was unnecessary. The words 'under the provisions of that Code' only mean provisions of the Criminal Procedure Code, 1973 (Act 2 of 1974). This provision has been specifically enacted to give effect to the protection contemplated by Section 2 of the Economic Offences (Inapplicability of Limitation) Act, 1974, to prosecutions launched under the Income-tax Act, along with offences under other Acts which may be tried together. Otherwise, the protection contained in Section 2 would get defeated. Therefore, the plea of limitation raised by the counsel for the petitioners has also to be rejected.

11. It was next argued that accused 3 onwards cannot be proceeded against since they had no knowledge of the filing of the return before the concerned officer. I do not wish to pronounce upon this except to say that this plea can be successfully agitated only with reference to materials to be placed before the trial court, at the appropriate stage. This question is, therefore, left open.

12. Not contented with the above question of law, the petitioners' counsel urged in addition that the complaint filed by the Income-tax Officer, F-Ward, is not competent since the return was submitted to the Income-tax Officer, E-Ward. Section 195(1)(b)(i) of the Code states that no courtshall take cognisance of any offence punishable under Sections 193 - 196, 199, etc.........when such offence is alleged to have been committed inrespect of a document produced or given in evidence in a proceeding, except on the complaint in writing of that court or of some other court to which that court is subordinate. According to the petitioners' counsel, proceedings before an Income-tax Officer are judicial proceedings. By implication it is contended that the Income-tax Officer, therefore, is a court. I do not think this contention can be sustained. Judicial proceedings is defined in Section 2, Sub-section (i) of the Code, which includes any proceedings in the course of which evidence is or may be legally taken on oath. All Tribunals before whom evidence is or may be legally taken are not courts. Therefore, the contention based on the alleged violation of the provisions contained in Section 195(1)(b) of the Code also fails. What is more, Section 279(1) says that no person shall be proceeded against for an offence under the various sections mentioned therein except at the instance of the Commissioner. In para. 2 of the complaint it is specifically stated that the complaint is filed as authorised by the Commissioner. This satisfies the requirement of that section also.

13. This revision against an order passed by the court below at an interlocutory stage is not maintainable under Section 397(2) of the Code. This petition is not maintainable under Section 482 of the Code also since it cannot be said that the prosecution against the accused is either an abuse of the process of any court or interference is necessary otherwise to secure the ends of justice.

14. All the contentions raised by the petitioners fail and accordingly the Crl. M.Ps. are dismissed.


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