Madras High Court: The Bench of P.N. Prakash, J., in a criminal revision case preferred in respect of setting aside the order of Additional Chief Metropolitan Magistrate, Chennai, stated that,
“The very edifice on which the prosecution was launched against the accused, crumbled like a pack of cards.”
The factual matrix of the case which led to the filing of the present criminal revision case was that, the petitioner herein was accused of the offence under Section 276-C (2) of the Income Tax Act, 1961. It was stated by the IT Department that for the assessment year 1998-1999, accused filed “Income Tax Returns”, wherein his total income was shown to be Rs 48,150. Income Tax Department on conducting an investigation found out that petitioner’s income was Rs 29,05,126, following which the tax payable along with interest was determined to be Rs 16,02,601.
On filing an appeal by the accused before CIT (Appeals) it was determined by the said authority that the income of the accused is Rs 26,69,470 and Rs 14,84,199 is to be paid as tax. Accused in respect of the stated filed an appeal before Income Tax Appellate Tribunal; however the stay petition was dismissed by ITAT and hence accused was liable to be punished under Section 276-C (2) of the IT Act, for non-payment of determined tax.
Reference to the judgment of the Apex Court in CIT v. Bhupen Champak Lal Dalal, (2001) 3 SCC 459 along with Gujarat Travancore Agency v. CIT, (1989) 3 SCC 52, in which the Supreme Court considered Section 276 C of the IT Act and held,
“….There can be no dispute that having regard to the provision of Section 276-C, which speaks of wilful failure on the part of the defaulter and taking into consideration the nature of the penalty, which is punitive, no sentence can be imposed under that provision unless the element of mens rea is established.”
Further, it was stated that the accused had pursued the matter to ITAT who had set aside the CIT (Appeals) order and remanded the matter back to CIT who ultimately determined the tax to be payable at income Rs 2,82,650. In reference to the stated, it should be noted that the accused had been knocking doors of these bodies challenging the determination of the income by ITO and at the end of the day the fact-finding body itself came to the conclusion that income of accused for that period was only Rs 2,82,650 and tax payable only Rs 1,10,402.
Therefore, there was no necessity for the Income Tax Department to have launched the prosecution hurriedly since the law of limitation under Section 468 CrPC for criminal prosecution has been excluded by the Economic Offences (Inapplicability of Limitation) Act, 1974.
Thus, the accused was not found wilfully evading payment of tax. But unfortunately, trial court failed to appreciate the accused’s contention. Court allowed the present criminal revision case and discharged the accused from prosecution. [Sayarmull Surana v. CIT, 2018 SCC OnLine Mad 3505, decided on 14-12-2018]
