High Court Punjab-Haryana High Court

M/S Hoshiarpur Roller Flour Mills vs Income Tax Officer on 29 September, 2008

Punjab-Haryana High Court
M/S Hoshiarpur Roller Flour Mills vs Income Tax Officer on 29 September, 2008
CRIMINAL MISC.M NO.6621 OF 2007                                    :{ 1 }:

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                    DATE OF DECISION: SEPTEMBER 29, 2008

             M/s Hoshiarpur Roller Flour Mills, Hoshiarpur and others

                                                             .....Petitioners

                                         VERSUS

             Income Tax Officer, Gurdaspur

                                                              ....Respondent



CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH

1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?



PRESENT:             Mr. K. S. Dadwal, Advocate,
                     for the petitioners.

                     Ms. Navinder K. Singh,
                     Senior Central Govt. Standing Counsel.

                                  ****

RANJIT SINGH, J.

The petitioners seek quashing of complaint dated

28.3.2006 (Annexure P-6) whereby they have been summoned to

face prosecution for offences under Sections 276C(1) and 277 of the

Income-Tax Act, 1961 (for short, “the Act”). Prayer is for quashing the

subsequent proceedings also.

The petitioners have sought quashing of this complaint

and the subsequent proceedings on the ground that criminal

proceedings can not be continued against them as the adjudicating
CRIMINAL MISC.M NO.6621 OF 2007 :{ 2 }:

proceedings initiated under the Act have been decided on the basis

of an agreed or consented order, which would bar the criminal

proceedings. Submission is that it will not be fair to direct

prosecution of the petitioners. Plea also is that summoning order is

cryptic and reflects non-application of mind and hence, can not be

sustained.

I have perused the pleadings and the stand of the

parties. While issuing notice of motion, this Court has noticed the

contention raised on behalf of the petitioners that Appeal No.146 of

2006 filed by the assessee is already pending before this Court.

Placing reliance on the judgment in the case of Commissioner of

Income Tax Vs. Bhopen Champak Lal Dalal, 2002 (2) RCR (Crl.)

141, it was urged that till the proceedings in appeal are pending, the

criminal proceedings against the petitioners are not to continue. The

proceedings pending before the Court of Chief Judicial Magistrate,

Amritsar, were, thus, stayed.

Reply has been filed. Counsel for the parties heard.

Mr.K.S.Dadwal, counsel appearing for the petitioners, has

first drawn my attention to Annexure P-2, which is an application

given to Income-tax Officer, Ward I, Gurdaspur, by V.B.Aggarwal,

Chartered Accountant, who was representing the petitioners. In the

application, it is averred that the assessee has agreed for levy of

penalty under Section 271(1)(c) of the Act and accordingly, assessee

may be levied this penalty on the basis of discussions, which is

stated to be due to negligence of the employees of the assessee. It

is further mentioned in the application that the penalty levied be
CRIMINAL MISC.M NO.6621 OF 2007 :{ 3 }:

minimum on the tax payable by the assessee firm and after taking

into consideration the replies filed in the course of assessment

proceedings. It is categorically mentioned that the assessee has

agreed for the levy of tax to buy peace of mind. On the basis of this

admission, which the counsel now wants to term as “agreed” or

“consented order”, penalty amounting to Rs.6,00,080/- was levied.

Once this penalty is levied, the petitioners appear to have

change of mind and filed an appeal against this levy of penalty before

the Commissioner of Income Tax (Appeals). The said appeal was

dismissed on the ground that the assessee had agreed for levy of

penalty and, thus, they can not make any grievance against the said

levy. While rejecting the appeal of the petitioners, reliance is placed

on a judgment passed by this Court in the case of Banta Singh

Kartar Singh Vs. CIT, 135 I.T.R. 239. Still not satisfied, the

petitioners challenged the order without success before the Income-

Tax Appellate Tribunal at Amritsar. Here again, they were non-suited

basically on the ground that they had agreed for the penalty to be

levied on them and hence, can not be heard to complain against the

same. Despite these set backs, the petitioners still sought a

reference by filing an appeal before this Court. The Division Bench of

this Court on 5.2.2007, also declined the prayer of the petitioners on

the ground that no substantial question of law warranting admission

of the instant appeal would arise. Rather it is clearly held that the

statement, which the petitioners made before the Income-tax

authorities, would fall into the definition of “admission” as contained

in Sections 17 and 18 of the Indian Evidence Act.

CRIMINAL MISC.M NO.6621 OF 2007 :{ 4 }:

It was pendency of this reference before this Court, which

had mainly been referred and relied upon by counsel for the

petitioners at the time of issuance of notice of motion. The appeal

and all remedies that are available to the petitioners have been

declined on the ground that they had admitted/confessed the evasion

of tax and accordingly, penalty amounting to over Rs.6,00,000/- was

levied.

During the course of arguments, the counsel even could

not clarify whether this penalty amount has been deposited or not.

Counsel for the respondent-Department, however, stated that till

21.8.2008, this penalty has even not been deposited. She, however,

is not clear whether this penalty amount is deposited in the meantime

or not. Be that as it may, the primary grievance of the petitioner as

noticed at the time of issuance of notice of motion was the pendency

of the appeal/the reference before this Court. That reference has

been declined by observing that no question of law arise in this case.

I have not been able to appreciate the line of submissions persued

by the counsel for the petitioners. Once the petitioners have failed in

his departmental remedies and have agreed for penalty, they

perhaps are in no position to plead for quashing the criminal

proceedings against them on account of evasion of tax. Is it a

genuine plea on the part of the counsel to read order of penalty to be

consented/agreed order or an attempt to ignore his admission or

confession? The order, which the learned counsel for the petitioners

wishes to read as a “consent” or “agreed” order, certainly can not be

taken as an agreed/consented order. It is a clear case of admission
CRIMINAL MISC.M NO.6621 OF 2007 :{ 5 }:

of the petitioners and the evasion of tax was admitted by them. On

that basis, they were, thus, directed to pay a levy of over

Rs.6,00,000/- as a penalty due to their admission. The submissions

that criminal prosecution can not continue against the petitioners is,

thus, without any basis whatsoever. The petitioners appear to have

cleverly got a notice issued by referring to the pendency of appeal

before this Court and now are making an attempt to catch any straw

to avoid their drowning. Nothing is seen in favour of the petitioners.

They have failed to deposit the penalty imposed on them after

passing of this order, which they now wish to describe as an

“agreed” or a “consented order”. They have cleverly avoided paying

penalty and were also able to have stay of their criminal proceedings

since February 2007. The prayer for quashing of these criminal

proceedings certainly appears misconceived and misplaced.

The second limb of the submission made by learned

counsel for the petitioners that the order summoning the petitioners,

(Annexure P-7), is a cryptic one, in my view, also is not made out.

The counsel has drawn my attention to the case of Batra Finance

Corporation and another Vs. Chief Judicial Magistrate and

others, 1991 ITR 71, in support. In this case, the order summoning

the petitioners was set-aside on the ground that the same is passed

without application of mind to the facts and circumstances of the

case. The order in the case of Batra Finance Corporation (supra)

read as under:-

“Complaint has been presented today. It be registered.

Accused be summoned by bailable warrants in the sum of
CRIMINAL MISC.M NO.6621 OF 2007 :{ 6 }:

Rs.3,000 for February 5, 1986.”

Obviously, the abovesaid order would clearly show a non-

application of mind. Such is not the situation in the present case. The

Chief Judicial Magistrate in this case has clearly held that this

complaint has been filed in discharge of official duties, thus, the

Magistrate had dispensed with the recording of preliminary evidence

of the complainant as well as of his witnesses. The complainant also

made a request for exemption from personal appearance. This was

also allowed. The Chief Judicial Magistrate has then recorded in the

order that from the perusal of the complaint alongwith accompanying

documents, sufficient grounds to proceed against the accused under

Sections 276(1) and 277 of the Act were made out. This would be

sufficient indication about the application of mind on his part. It may

need a mention here that the case against the petitioners is based on

their admission of the evasion of tax and this fact would alone be

enough for issuing process. The impugned order is otherwise not

cryptic, as can be said about the order, which was under challenge in

the case of Batra Finance Corporation (supra). There is, thus, no

case made out to interfere in the impugned order.

The present revision petition under Section 482 Cr.P.C. is

totally without any merit and the same is dismissed.

September 29,2008                         ( RANJIT SINGH )
khurmi                                         JUDGE