{"id":39692,"date":"2004-01-28T00:00:00","date_gmt":"2004-01-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-c-builders-anr-vs-the-assistant-commissioner-of-on-28-january-2004"},"modified":"2015-12-20T01:19:22","modified_gmt":"2015-12-19T19:49:22","slug":"k-c-builders-anr-vs-the-assistant-commissioner-of-on-28-january-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-c-builders-anr-vs-the-assistant-commissioner-of-on-28-january-2004","title":{"rendered":"K.C. Builders & Anr vs The Assistant Commissioner Of … on 28 January, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
K.C. Builders & Anr vs The Assistant Commissioner Of … on 28 January, 2004<\/div>\n
Author: . A Lakshmanan<\/div>\n
Bench: B.N. Agrawal, Dr. Ar. Lakshmanan.<\/div>\n
           CASE NO.:\nAppeal (crl.)  212-213 of 1998\n\nPETITIONER:\nK.C. Builders & Anr.\t\t\t \t\t\n\nRESPONDENT:\nThe Assistant Commissioner of Income Tax                \n\nDATE OF JUDGMENT: 28\/01\/2004\n\nBENCH:\nB.N. Agrawal & Dr. AR. Lakshmanan.\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
Dr. AR. Lakshmanan, J.\n<\/p>\n
\tThese appeals are directed against the final judgment passed by the High Court
\nof Judicature at Madras in Criminal Revision Case No. 508 of 1997 and Criminal Misc.
\nPetition No. 3411 of 1997 dated 13.08.1997 by which the High Court dismissed the
\ncriminal revision under Section 397 read with Section 401 of the Code of Criminal
\nProcedure, 1973.   The facts giving rise to these appeals are as under:-\n<\/p>\n
\tThe appellant is a partnership firm engaged in the business of construction and
\nsale of flats.  The construction of some of the projects started in the year 1981-82 and
\nwas completed in the year 1986-87.  The appellants filed the returns of income
\ndisclosing the assessed income as the income.  The cost of construction was shown as
\nunder:-\n<\/p>\n
Assessment Year 1983-84\t\t–\tRs.4,72,860\/-\n<\/p>\n
Assessment year 1984-85\t\t–\tRs.5,77,590\/-\n<\/p>\n
Assessment year 1985-86\t\t–\tRs.7,28,531\/-\n<\/p>\n
Assessment year 1986-87\t\t–\tRs.7,03,002\/-\n<\/p>\n
The appellants filed revised returns as per the approved valuer’s report for
\nassessment years 1983-84 to 1986-87 on 04.11.1987 in the following manner as the
\nearlier returns were found to be defective with regard to cost of construction.\n<\/p>\n
Assessment year 1983-84\t\t–\tRs.8,76,000\/-\n<\/p>\n
Assessment year 1984-85\t\t–\tRs.5,42,000\/-\n<\/p>\n
Assessment year 1985-86\t\t–\tRs.13,47,229\/-\n<\/p>\n
Assessment year 1986-87\t\t–\tRs.10,37,920\/-\n<\/p>\n
The revised returns were accepted by the Department and assessments were
\ncompleted.\n<\/p>\n
\tThe respondent\/assessing authority treated the difference between the income
\nas per original return and revised income as concealed income. The Assistant
\nCommissioner of Income-Tax levied penalties under Section 271(1)(c) of the Income
\nTax Act, 1961 (hereinafter referred to as “the Act”) for all the aforesaid four assessment
\nyears.  Accordingly, penalty proceedings were initiated.  The first appeal against the
\norder of penalties levied for concealment of income against the appellants were
\nconfirmed by the C.I.T. (Appeals).  As per the directions of the Chief Commissioner of
\nIncome Tax, four complaints were filed in the Court of Additional Chief Metropolitan
\nMagistrate, Egmore, Chennai for offences under Sections 276C (2), 278B of the Act
\nand Sections 120B, 34, 193, 196 and 420 of the Indian Penal Code.
\n\tThe gist of the prosecution case was that a conspiracy was entered into between
\nthe accused\/appellants and they filed false returns of income before the Department
\nwhich led to concealment of income to evade tax.  On  24.10.1996, the appellants had
\npreferred an appeal before the Income-Tax Appellate Tribunal against the consolidated
\norder passed by C.I.T. (Appeals) on 18.07.1990 for assessment years 1983-84 to 1986-\n<\/p>\n
87.  It was contended that the Assessing Officer referred the matter relating to valuation
\nof the Departmental Valuation Cell which reportedly estimated the cost of construction
\nat Rs.50,96,750\/-.  If that were to be adopted then the income would result in a loss.  It
\nwas contended that the Department has not brought out any material to show that there
\nwas concealment of income.   The Tribunal, after verifying the records, found that the
\nadditions were on the basis of settlement between the assessees and the Department
\nand represents voluntary offer made by the assessee and, therefore, in such
\ncircumstances the Tribunal applying the principles laid down by this Court in the Case
\nof Sir Shadilal Sugar and General Mills Ltd. & Anr. Vs. C.I.T., Delhi [1987] 168 I.T.R.
\n705 held that there was no concealment of income by the assessee and accordingly the
\npenalties were cancelled and allowed the appeals.  The appellants thereupon moved an
\napplication before the Additional Chief Metropolitan Magistrate, (E.O.II), Egmore,
\nChennai by filing M.P. No.614 of 1996 in C.C. No. 425 of 1990 praying the Court for
\nadjourning the proceedings in the above case to enable them to move the necessary
\npetition and to file the copy of the order of the Tribunal dated 24.10.1996 which allowed
\nthe appeals preferred by the Ist accused against the levy of penalty upon them.
\nHowever, the learned Magistrate permitted the appellants to mark the order of the
\nTribunal in evidence at the appropriate stage of trial for which prosecution has no
\nobjection.\n<\/p>\n
\tGiving effect to the Income Tax Appellate Tribunal’s order in I.T.A. Nos. 3129-
\n3132, the penalties levied under Section 271(1)(c) of the Act were cancelled by the
\nrespondent on 27.01.1997.  In the meanwhile, the Revenue Department filed an
\napplication under Section 256(1) of the Act for reference of the question of law which
\nhad arisen out of Income Tax Appellate Tribunal’s Order dated 24.10.1996.  The
\napplication of the Revenue Department was rejected.  Thereupon, the appellants
\npreferred a Criminal Revision under Sections 397 and 401 of the Criminal Procedure
\nCode, 1973 before the High Court for setting aside the order passed by the Additional
\nChief Metropolitan Magistrate dated 21.7.1997.  The learned Single Judge of the
\nMadras High Court rejected the criminal revision vide his impugned order holding that
\nthe Income Tax Appellate Tribunal’s order was not applicable since it was not marked
\nas defence document whereas the fact remains that the order was passed at a
\nsubsequent date.  Before the High Court, the decision of this Court in K.T.M.S.
\nMohammed and Anr. Vs. Union of India, [1992] 197 I.T.R. 196 was cited.  The High
\nCourt after observing that the observation in the case of K.T.M.S. Mohammed & Anr.
\n(supra) helps the appellants to the extent that the trial Court should have given due
\nregard to the Tribunal’s order but clearly made an error by distinguishing the said
\njudgment on the ground that the Tribunal’s order was marked as a defence document
\nwhereas in the instant case it was not marked as a defence document.  Whereas the
\nfact remains that the defence documents were marked earlier to the order dated
\n24.10.1996 passed by the Appellate Tribunal which was immediately thereafter brought
\nto the notice of the trial Court even by the prosecution in their own application.
\n\tWe have perused the pleadings, the order passed by the High Court, copy of the
\ncomplaints, copy of the order dated 24.10.1996 passed by the Income Tax Appellate
\nTribunal, Madras, order dated 11.12.1996 passed by the Additional Chief Metropolitan
\nMagistrate, Chennai, copy of the proceedings of the Income Tax Officer cancelling the
\npenalty levied under Section 271(1)(c) of the Act, copy of the application filed on
\n12.12.1996 by the appellants and copy of the order passed thereupon on 21.07.1997
\nand copy of the order dated 4.8.1997 passed by the ITAT Bench Madras in Reference
\nApplication Nos. 32-35 for assessment years 1983-84 to 1986-87.  We also perused the
\nrelevant provisions under the Income Tax Act, 1961 and of the Indian Penal Code.
\n\tOn the above pleadings and facts and circumstances of the case, the following
\nquestions of law arise for consideration by this Court:-\n<\/p>\n
(a)\tWhether a penalty imposed under Section 271 (1) (c) of the Income Tax Act
\nand prosecution under Section 276C of the Income Tax Act are simultaneous?\n<\/p>\n
(b)\tWhether the Criminal prosecution gets quashed automatically when the Income
\nTax Appellate Tribunal which is the final Court on the facts comes to the
\nconclusion that there is no concealment of income, since no offence survives
\nunder the Income Tax Act thereafter?\n<\/p>\n
(c)\tWhether the High Court was justified in dismissing the Criminal Revision
\nPetition vide its impugned order ignoring the settled law as laid down by this
\nCourt that the finding of the Appellate Tribunal was conclusive and the
\nprosecution cannot be sustained since the penalty after having been cancelled
\nby the complainant following the Income Tax Appellate Tribunal’s Order no
\noffence survives under the Income Tax Act and thus the quashing of the
\nprosecution is automatic?\n<\/p>\n
(d)\tWhether the finding of the Income Tax Appellate Tribunal is binding upon the
\nCriminal Court in view of the fact that the Chief Commissioner and the
\nAssessing Officer who initiated the prosecution under Section 276C (1) had no
\nright to overrule the order of the Income Tax Appellate Tribunal.  More so when
\nthe Income Tax Officer giving the effect to the order cancelled the penalty
\nlevied under Section 271 (1) (c).\n<\/p>\n
(e)\tWhether the High Court’s order is liable to be set aside in view of the errors
\napparent on record.\n<\/p>\n
We heard Mr. Ajit Kumar Sinha, learned counsel appearing for the appellants
\nand Mr. R.P. Bhatt, learned senior counsel appearing for the respondent.
\n\tLearned counsel appearing for the appellants submitted that the learned single
\nJudge of the High Court has failed to appreciate that under Section 254 of the Act an
\norder by the Income Tax Appellate Tribunal not only superseded the order passed by
\nthe Assessing Officer under Section 143(3) of the Act but also set aside the finding of
\nthe Assessing Officer under the provisions of the Act.   He further submitted that the
\nHigh Court has failed to appreciate that both the penalty proceedings and the
\nprosecution are simultaneous and any prosecution launched on the basis of the order of
\nthe Assessing Officer under Section 143(3) of the Act became void and it knocks down
\nthe very basis for prosecution under Section 276C of the Act and it is in this background
\nthe Assessing Officer giving effect to the order of the Appellate Tribunal, cancelled the
\npenalty levied.  Learned counsel further submitted that the learned single Judge has
\nfailed to see that the findings of the appellate Tribunal that there was no concealment of
\nincome and the same became conclusive and hence prosecution could not have been
\nsustained.  The High Court has also further failed to see that even the application for
\nreference by the Revenue Department under Section 256(1) of the Act was rejected on
\nthe ground that it is a pure question of fact and no question of law was involved.    It
\nwas also further contended that the High Court failed to note that the order passed by
\nthe income Tax Appellate Tribunal though marked as Exhibit through the defendants
\nwitness was not considered by the Courts below.\n<\/p>\n
\tMr. R.P. Bhatt, learned senior counsel appearing for the respondent, vehemently
\nopposed the contentions raised by learned counsel for the appellants.  He submitted
\nthat the penalty proceedings and the prosecution proceedings are clearly independent
\nand that the result of proceedings under the Act is not binding on the Criminal Court
\nand that the Criminal Court has to judge the case independently on the evidence placed
\nbefore it.  He would further submit that the complaints were filed in March, 1990 under
\nSections 276C (1), 277 & 278B of the Act before the Additional Chief Metropolitan
\nMagistrate which were registered as E.O.C.C. Nos. 422 to 425 of 1990, charges were
\nframed against the accused firm and its partners in September, 1993 and by October,
\n1996, nine prosecution witnesses had already been cross-examined and the
\nprosecution witness No.10 was examined on 8.10.1996.  At this stage, the appellants
\nfiled a petition for dropping the prosecution proceedings and, therefore, the High Court
\nwas justified in dismissing the petition of the appellants on the facts and circumstances
\nof the case.    It was further submitted that the discretion should be exercised judicially
\nand in such a way as not to frustrate the object of the criminal proceedings and,
\ntherefore, the High Court is justified in dismissing the petition of the appellants.
\nConcluding his submissions, learned senior counsel submitted that on the facts and
\ncircumstances of the case, the order of the High Court is neither erroneous nor against
\nthe principles of law.\n<\/p>\n
\tBefore proceeding to consider the rival submissions, it is beneficial to refer to
\nsome important provisions of the Act under which the proceedings have been  initiated:-
\n\tSection 147 of the Act deals with income escaping assessment.  Section 148
\ndeals with issue of notice where income has escaped assessment.  Section 254 deals
\nwith orders of Appellate Tribunal.  Section 256 deals with statement of case to the High
\nCourt (reference).  Section 271 (1)(c) reads as follows:-
\n“Section 271. Failure to furnish returns, comply with notices, concealment
\nof income, etc.  (1) If the Assessing Officer or the Commissioner(Appeals) in
\nthe course of any proceedings under this Act, is satisfied that any person\n<\/p>\n
(a)\t..\n<\/p>\n
(b)\t.\n<\/p>\n
(c)\t has concealed the particulars of his income or furnished inaccurate
\nparticulars of such income,
\nhe may direct that such person shall pay by way of penalty, –\n<\/p>\n
(i)\t.\n<\/p>\n
(ii)\n<\/p>\n
(iii)\tin the cases referred to in clause (c), in addition to any tax
\npayable by him, a sum which shall not be less than, but which
\nshall not exceed three times, the amount of tax sought to be
\nevaded by reason of the concealment of particulars of his
\nincome or the furnishing of inaccurate particulars of such
\nincome.”\n<\/p>\n
One of the amendments made to the abovementioned provisions is the omission
\nof the word “deliberately” from the expression “deliberately furnished inaccurate
\nparticulars of such income”.  It is implicit in the word “concealed” that there has been a
\ndeliberate act on the part of the assessee.  The meaning of the word “concealment” as
\nfound in Shorter Oxford English Dictionary, 3rd Edition, Volume I, is as follows:-
\n“In law, the intentional suppression of truth or fact known, to the injury or
\nprejudice of another.”\n<\/p>\n
The word “concealment” inherently carried with it the element of mens rea.
\nTherefore, the mere fact that some figure or some particulars have been disclosed by
\nitself, even if takes out the case from the purview of non-disclosure, it cannot by itself
\ntake out the case from the purview of furnishing inaccurate particulars.  Mere omission
\nfrom the return of an item of receipt does neither amount to concealment nor deliberate
\nfurnishing of inaccurate particulars of income unless and until there is some evidence to
\nshow or some circumstances found from which it can be gathered that the omission
\nwas attributable to an intention or desire on the part of the assessee to hide or conceal
\nthe income so as to avoid the imposition of tax thereon.  In order that a penalty under
\nSection 271(1)  (iii) may be imposed, it has to be proved that the assessee has
\nconsciously made the concealment or furnished inaccurate particulars of his income.
\nWhere the additions made in the assessment order, on the basis of which penalty for
\nconcealment was levied, are deleted, there remains no basis at all for levying the
\npenalty for concealment and, therefore, in such a case no such penalty can survive and
\nthe same is liable to be cancelled as in the instant case.  Ordinarily, penalty cannot
\nstand if the assessment itself is set aside.  Where an order of assessment or
\nreassessment on the basis of which penalty has been levied on the assessee has itself
\nbeen finally set aside or cancelled by the Tribunal or otherwise, the penalty cannot
\nstand by itself and the same is liable to be cancelled as in the instant case ordered by
\nthe Tribunal and later cancellation of penalty by the authorities.
\n\tSection 276C of the Act   deals with wilful attempt to evade tax, etc.  Section 277
\ndeals with false statement in verification, etc.  and Section 278B deals with the offences
\nby companies.\n<\/p>\n
Four complaints were filed by the Assistant Commissioner of Income Tax,
\nCentral Circle III(1) against the appellants on the basis of the sanction ordered by the
\nCommissioner of Income Tax under Section 279(1) of the Act for the prosecution of the
\naccused\/appellants for the offences punishable under Sections 276 C (1), 277 and
\n278B of the Act..  It is stated in the complaint that the accounts and documents seized
\nduring the course of search showed that the accused had suppressed the true receipts
\nfrom sale of flats, action under Section 148 of the Act was taken and in response to the
\nsaid notice, the return of the respective accounts were delivered to the Income Tax
\nOfficer which was signed and verified by the accused concerned and that the Income
\nTax Officer further made the enquiries and investigations and summoned various
\npersons for their statements.  When the enquiry was in progress, the accused knowing
\nthat the suppression of receipts has been found out by the Income Tax Officer filed
\nanother revised return on 4.11.1987 showing different income as against the original
\nreturn.  It was submitted that the appellants with a view to wilfully evade tax and to
\ndefraud the exchequer of its legitimate revenue and to deceive the Income Tax Officer,
\nacting in consort and in furtherance of the common intention, all the accused conspired
\nto fabricate false evidence in the form of Books of Accounts containing false entries
\nwith a view to using them as genuine evidence in Income Tax assessment proceedings
\nfor the assessment year 1983-84.  Thus it was stated that the appellants had
\ncommitted offence punishable under the provisions above-quoted.
\nA consolidated order was passed by the Commissioner of Income Tax (Appeals)
\non 18.7.1990 for the assessment years 1983-84 to 1986-87.  In all these appeals, the
\nassessee disputed the imposition of penalty under Section 271(1)(c) of the Act.  The
\nassessments were initially completed under Section 143(3) of the Act.  On 20.3.1986,
\nthe business premises of the firm as well as the residential premises of two of its
\npartners were searched under Section 132 of the Act.  In response to the same, the
\nassessee filed the returns of income disclosing the income assessed as the income.
\nAfter filing the returns in accordance with these books, the assessee came to know that
\nthe Books of Accounts were defective with regard to the cost of construction.
\nTherefore, on 04.11.1987, the assessee filed a revised return estimating the cost of
\nconstruction on the basis of the approved valuer’s report.  The revised returns were
\naccepted by the Department and the assessments were completed.  The difference
\nbetween the income as per the original returns and the income shown in the revised
\nreturns was treated as concealed income and the Assessing Officer has levied the
\npenalty under Section 271(1)(c) of the Act in all these years.  The assessees were
\nunsuccessful before the Commissioner of Income Tax (Appeals).  Therefore, the
\nassessee filed the appeals before the Income Tax Appellate Tribunal, Madras in I.T.A.
\nNos. 3129 to 3132\/Mds\/90.  Before the Tribunal, it was pointed out that since there
\nwere defects in the Books of Accounts with regard to the cost of construction, the
\nassessee voluntarily referred  the matter to the approved valuer and has revised the
\nreturns accordingly.  All this was done with a view to buy peace with the Department
\nand the returned income does not represent any concealed income.  It was also
\npointed out by the learned counsel that the Department has not made any addition
\nbeyond what has been returned by the assessee.  In other words, it was pointed out
\nthat the returned income has been accepted by the Department and there is no
\nconcealment of any income.  It was stressed by the counsel that the returns were
\nrevised in pursuance of the settlement with the Department only to buy peace.  Learned
\ncounsel appearing for the Department, on the other hand, strongly supported the
\nimposition of penalty in the facts and circumstances of the case.  The Tribunal allowed
\nthe appeal and cancelled the penalty.  It is useful to reproduce the concluding part of
\nthe order passed by the Tribunal which is as under:\n<\/p>\n
“We have carefully considered the rival submissions and perused the materials
\nbrought on record.  Although there is a discussion by the Assessing Officer that
\nthe assessee has received some on-money in respect of sale of flats but he has
\nnot mentioned what is the exact quantum of such on-money receipts.  The mere
\nfact that though the receipt of on-money is a prevalent practice in the case of
\ntransaction in flats, it cannot be presumed that there was a concealment of
\nincome or evasion of taxes.  The Department must bring out material to indicate
\nthe actual concealment of income.  The whole discussions in the assessment
\norder clearly shows that the Department has proceeded only on the basis of the
\ncost of construction.  At the stage when enquiries were made, the assessee has
\ngot the valuation done by an approved valuer and filed the revised returns and
\npaid the taxes thereon.  This conduct clearly shows that there was some sort of
\nsettlement between the assessee and the Department.  The assessment of
\nincome is based purely on estimate basis.  Without adequate materials, it is
\nimpossible to accept the Department’s contention that some part of the
\nestimated income represents concealed income.  The assessee has filed the
\nrevised returns.  By so revising the returns, the assessee has substituted the
\nincome of the original return with that of the revised returns vis-`-vis the revised
\nreturn there is no concealment of any income.  The department has accepted all
\nthese revised income which clearly shows that the assessments are based on
\nthe basis of the voluntary offer made by the assessee.  There is no material
\nbrought before us even at this stage to show that there was any concealment of
\nincome by the assessee and therefore find force in the stand taken by the
\nassessee that the entire revision of income was as a result of voluntary offer
\nmade by the assessee.  Keeping in view the ratio laid down by the Supreme
\nCourt in the case of Sir Shadilal Sugar and General Mills Ltd. And Another vs.
\nCIT (165 ITR 705), we hold that in the facts and circumstances of the case
\nthere is no concealment of income by the assessee.  Accordingly, the penalties
\nare cancelled.\n<\/p>\n
In the result, the appeals are allowed.\n<\/p>\n
Sd\/-\t\t\t\t\t\tSd\/-                                             \n(G. Chowdhury)\t\t \t\t(G.E.Veerabhadrappa)       \nJudicial Member \t\t\t\tAccountant Member\nMadras,                                                                                                         \nDated, the 24th October, 1996\"                                            (emphasis supplied)\n<\/pre>\n
The above order of the Tribunal was not appealed against and thus has become
\nfinal and conclusive.\n<\/p>\n
The Additional Chief Metropolitan Magistrate, on an application moved by the
\nappellants, permitted the appellants to mark the copy of the order of the Tribunal dated
\n24.10.1996 in evidence at the appropriate stage of trial.
\n\tIt is also very useful, in the present context, to refer to the proceedings of the
\nIncome Tax Officer, City Ward-II (2), Chennai cancelling the penalty.  One sample order
\nreads thus:-\n<\/p>\n
“GIR.No: 279-K\/CW.II(2)\/83-84\t\t\t\tDt: 27-1-97
\nSub: Penalty under section 271(1)(c)  Asst. year 1983-84  in the case of M\/s K.C.
\nBuilders, 26, Nynar Nadar Road, Chennai  600 004  reg
\nRef: I.T.A.T’s Order in I.T.A.No: 3129 to 3132\/Mds\/90 dt. 24-10-1996.
\n:O R D E R :\n<\/p>\n
\tGiving effect to the Income-tax Appellate Tribunal’s Order in I.T.A.No: 3129 to
\n3132 the penalty levied under section 271 (1)(c) is hereby cancelled.
\nU\/s.271(1)(c), Rs.1,43,181\/- is hereby cancelled.”\n<\/p>\n
\tLearned counsel appearing for the appellants cited the following decisions in
\nsupport of his submissions at the time of hearing:-\n<\/p>\n
\tThe first in the series is the judgment in Uttam Chand & Ors. Vs. Income Tax
\nOfficer, Central Circle, Amritsar, (1982) 2 SCC 543.  In this case, the registration was
\ncancelled on the ground that the firm was not genuine and prosecution initiated for filing
\nfalse return.  The Tribunal rendered the finding that the firm to be genuine and on the
\nbasis of the finding of the Tribunal, this Court held that the prosecution must be
\nquashed.  The short judgment reads thus:-\n<\/p>\n
“Heard counsel, special leave granted.  In view of the finding recorded by the
\nIncome Tax Appellate Tribunal that it was clear on the appraisal of the entire
\nmaterial on the record that Shrimati Janak Rani was a partner of the assessee
\nfirm and that the firm was a genuine firm, we do not see how the assessee can
\nbe prosecuted for filing false returns.  We, accordingly, allow this appeal and
\nquash the prosecution.\n<\/p>\n
There will be no order as to costs”\n<\/p>\n
\tIn the case of G.L. Didwania & Anr. Vs. Income Tax Officer & Anr. 1995
\nSupp(2) SCC 724, the prosecution was levelled against the assessee for making false
\nstatement.  The Assessing Authority held that the assessee had intentionally concealed
\nhis income derived from `Y’ company which belonged to him, initiating prosecution
\nagainst him.  The appellant filed the appeal against the assessment order and the
\nTribunal set aside the assessment holding that there was no material to hold that `Y’
\ncompany belonged to the assessee.  The assessee thereupon filed a petition before
\nthe Magistrate to drop the criminal proceedings and the application before the High
\nCourt under Section 482 to quash the criminal proceedings which were dismissed.  On
\nappeal, this Court held that the whole question was whether the appellant made a false
\nstatement regarding the income which according to the assessing authority had
\nescaped assessment and so far as this issue was concerned, the finding of the
\nappellate Tribunal was conclusive and hence the prosecution cannot be sustained.
\nAccordingly, this Court quashed the criminal proceedings and allowed the appeal filed
\nby the assessee.\n<\/p>\n
The above judgment squarely applies to the facts and circumstances of the case
\non hand.  In this case also, similarly, the application was moved by the assessee before
\nthe Magistrate to drop the criminal proceedings which were dismissed by the Magistrate
\nand the High Court also on a petition filed under Sections 397 and 401 of the Code of
\nCriminal Procedure, 1973 to revise the order of the Additional Chief Metropolitan
\nMagistrate has also dismissed the same   and refused to refer to the order passed by
\nthe competent Tribunal.  As held by this Court, the High Court is not justified in
\ndismissing the criminal revision vide its judgment ignoring the settled law as laid down
\nby this Court that the finding of the appellate Tribunal was conclusive and the
\nprosecution cannot be sustained since the penalty after having been cancelled by the
\ncomplainant following the appellate Tribunal’s order, no offence survives under the
\nIncome Tax Act and thus quashing of prosecution is automatic.
\n\tIn the instant case, the penalties levied under Section 271(1)(c) were cancelled
\nby the respondent by giving effect to the order of the Income Tax Appellate Tribunal in
\nI.T.A. Nos. 3129-3132.  It is settled law that levy of penalties and prosecution under
\nSection 276C are simultaneous.  Hence, once the penalties are cancelled on the
\nground that there is no concealment, the quashing of prosecution under Section 276C
\nis automatic.\n<\/p>\n
\tIn our opinion, the appellants cannot be made to suffer and face the rigorous of
\ncriminal trial when the same cannot be sustained in the eyes of law because the entire
\nprosecution in view of a conclusive finding of the Income Tax Tribunal that there is no
\nconcealment of income becomes devoid of jurisdiction and under Section 254 of the
\nAct, a finding of the Appellate Tribunal supercedes the order of the Assessing Officer
\nunder Section 143(3) more so when the Assessing Officer cancelled the penalty levied.
\n\tIn our view, once the finding of concealment and subsequent levy of penalties
\nunder Section 271(1)(c) of the Act has been struck down by the Tribunal, the Assessing
\nOfficer has no other alternative except to correct his order under Section 154 of the Act
\nas per the directions of the Tribunal.  As already noticed, the subject matter of the
\ncomplaint before this Court is concealment of income arrived at on the basis of the
\nfinding of the Assessing Officer.  If the Tribunal has set aside the order of concealment
\nand penalties, there is no concealment in the eyes of law and, therefore, the
\nprosecution cannot be proceeded with by the complainant and further proceedings will
\nbe illegal and without jurisdiction.  The Assistant Commissioner of Income Tax cannot
\nproceed with the prosecution even after the order of concealment has been set aside
\nby the Tribunal. When the Tribunal has set aside the levy of penalty, the criminal
\nproceedings against the appellants cannot survive for further consideration.  In our
\nview, the High Court has taken the view that the charges have been framed and the
\nmatter is in the stage of further cross-examination and, therefore, the prosecution may
\nproceed with the trial.  In our opinion, the view taken by the learned Magistrate and the
\nHigh Court is fallacious.  In our view, if the trial is allowed to proceed further after the
\norder of the Tribunal and the consequent cancellation of penalty, it will be an idle and
\nempty formality to require the appellants to have the order of Tribunal exhibited as a
\ndefence document inasmuch as the passing of the order as aforementioned is
\nunsustainable and unquestionable.\n<\/p>\n
\t The same view as that of ours has been taken by this Court and the various
\nother High Courts in catena of decisions.\n<\/p>\n
1.\tCommissioner of Income-Tax vs. Bahri Brothers Pvt. Ltd.<\/a>
\n[1987] 167 I.T.R. 880
\n“Held, that the penalty was based on the earlier assessment order
\nwherein the amount representing cash credits was included.  Since
\nthat order had been set aside and the cash credits deleted from the
\nassessment, the consequent order of penalty had been rightly
\ncancelled.”\n<\/p>\n
2.\tCommissioner of Income-Tax vs. Bhagwan Ltd. [1987] 168 I.T.R. 846
\n“Held, that the orders of reassessment on the basis of which penalties were
\nlevied had been set aside by the Tribunal.  Hence, the order of penalty could
\nnot stand by itself.  The cancellation of penalty was justified.”\n<\/p>\n
3.\tCommissioner of Income-Tax vs. Bengal Jute Mills Co. Ltd.<\/a>
\n[1988] 174 I.T.R. 402
\n“Where penalty was imposed solely on the basis of an addition of Rs. 4 lakhs
\nto the assessee’s total income and the addition was deleted by the Tribunal:
\nHeld, that it was evident from the material on record that the penalty had
\nbeen imposed solely on the basis of the addition of Rs. 4 lakhs to the
\nassessee’s income.  If the addition was deleted, the charge of concealment
\nof income could not be sustained.  Imposition of penalty under section
\n271(1)(c) of the Income-tax Act, 1961, was, therefore, not valid.”\n<\/p>\n
4.\tCommissioner of Income-Tax vs. Madanlal Sohanlal
\n[1989] 176 I.T.R. 189
\n“Penalty cannot stand on its own independently of the assessment.
\nWhere, in an appeal against the assessment reopened under section 147 of
\nthe Income-tax Act, 1961, the Appellate Tribunal deleted the addition on
\naccount of deemed dividend under section 12(1B) read with section 2(6A)(e)
\nof the Indian Income-tax Act, 1922, the deemed dividend which had been
\ndeleted could not form the subject-matter of imposition of penalty under
\nsection 271(1)(c) of the Income-tax Act, 1961, because, the basis for
\nimposition of penalty had ceased to exist.  Therefore, the Tribunal was
\ncorrect in cancelling the penalty imposed on account of the addition.”\n<\/p>\n
5.\tCommissioner of Income-Tax vs. Bedi and Co. (P) Ltd.\n<\/p>\n
[1990] 183 I.T.R. 59
\n“Held, that, in view of the conclusion reached by the High Court that the
\namount in question was not assessable, there was no basis for the
\nimposition of penalty.  The cancellation of penalty was valid.
\n[The Supreme Court has dismissed the special leave petition filed by the
\nDepartment against this judgment of the High Court in relation to penalty
\nunder section 271(1)(c) arising out of an assessment, wherein the addition of
\na loan has been cancelled by the High Court as reported in [ 1983] 144 ITR
\n352 : See [ 1990] 181 ITR (St.) 19-Ed.]  <\/p>\n
6.\tCommissioner of Income-Tax vs. Agarwalla Brothers<\/a>
\n[1991] 189 I.T.R. 786
\n“Held, (i) that the fact a particular construction had not been shown in the
\naccounts of the assessee was not relevant since this circumstance had not
\nbeen recorded as one of the reasons for initiating the proceedings under
\nsection 147(a);\n<\/p>\n
(ii) that the Tribunal had found, after examining the entire record, that there
\nhad been no failure to disclose primary facts on the part of the assessee.
\nThe reassessment was, therefore, not valid;\n<\/p>\n
(iii) that penalty had been imposed consequential to the re-assessment.
\nSince the reassessment had been set aside, the order of the Tribunal
\ncancelling the penalty levied under section 271(1)(c) of the Act was also
\nlegal.”\n<\/p>\n
7.\tAdditional Commissioner of Income-Tax vs. Badri Prasad Kashi Prasad<\/a>
\n[1993] 200 I.T.R. 206
\n“Held, that the levy of penalty was based on the addition to income made by
\nthe Income-tax Officer.  The addition was deleted by the Tribunal.  Hence,
\nthe Tribunal was justified in cancelling the penalty.”\n<\/p>\n
8.\tCommissioner of Income-Tax vs. Roy Durlabhji [1995] 211 I.T.R. 470
\n“Held, dismissing the application for reference, that the Tribunal had set
\naside the penalty on the ground that the additions to income had already
\nbeen deleted.  Since there was no liability to tax, no penalty could be levied.
\nThe Tribunal was justified in cancelling the penalty and no question of law
\narose from its order”\n<\/p>\n
\tThe very recent judgment in the case of Hira Lal Hari Lal Bhagwati vs. C.B.I.
\nNew Delhi, JT<\/a> 2003 (4) SC 381,in which one of us (Dr. AR. Lakshmanan,J.) was a
\nmember, this Court while considering the scope of the immunity granted under the Kar
\nVivad Scheme – Whether criminal proceedings could be initiated in respect of
\ndeclaration filed under the Scheme and accepted by the Excise Department can
\nproceed  further with the prosecution and criminal conspiracy and cheating against the
\nappellants therein.  Allowing the appeals, this Court held that since the alleged criminal
\nliability stood compounded on settlement with respect of the civil issues, the FIR was
\nerroneous and unwarranted and, therefore, the continuation of the proceedings would
\ntantamount to double jeopardy.  This Court further held that the Collector of Customs
\nhad exonerated the appellants there was no warrant for any fresh investigation and
\nprosecution on a matter which stood settled.  Further since no prima facie case of
\ncheating and criminal conspiracy was made out the process issued is liable to be
\nquashed.  It is to be noticed that as per the Kar Vivad Samadhan Scheme, 1998
\nwhoever is granted the benefit under the said Scheme is granted immunity from
\nprosecution from any offence under the Customs Act, 1962 including the offence of
\nevasion of duty.  In the circumstances, the complaint filed against the appellants is
\nunsustainable.  This Court further held that under the penal law, there is no concept of
\nvicarious liability unless the said statute covers the same within its ambit.  In that case,
\nthe appellants have been wholly discharged under the Customs Act, 1962 and the GCS
\ngranted immunity from prosecution.\n<\/p>\n
\tIn this instant case, the charge of conspiracy has not been proved to bring home
\nthe charge of conspiracy within the ambit of Section 120-B of I.P.C.  It is also settled
\nlaw that for establishing the offence of cheating, the complainant is required to show
\nthat the accused had fraudulent or dishonest intention at the time of making promise or
\nmisrepresentation.  From his making failure to keep up promise subsequently, such a
\nculpable intention right at the beginning that is at the time when the promise was made
\ncannot be presumed.  As there was absence of dishonest and fraudulent intention, the
\nquestion of committing offence under Section 420 of the I.P.C. does not arise.
\n\tThe High Court without adverting to the above important questions of law
\ninvolved in this case and examined them in the proper perspective disposed of the
\nrevisions in a summary manner and hence the impugned orders passed by the High
\nCourt and the learned Magistrate warrant interference.\n<\/p>\n
\tIt is a well-established principle that the matter which has been adjudicated and
\nsettled by the Tribunal need not be dragged into the criminal courts unless and until the
\nact of the appellants could have been described as culpable.
\nFor the aforesaid discussions and reasons adduced, the questions of law
\nformulated above are answered accordingly and the appeals stand allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India K.C. Builders & Anr vs The Assistant Commissioner Of … on 28 January, 2004 Author: . A Lakshmanan Bench: B.N. Agrawal, Dr. Ar. Lakshmanan. CASE NO.: Appeal (crl.) 212-213 of 1998 PETITIONER: K.C. Builders & Anr. RESPONDENT: The Assistant Commissioner of Income Tax DATE OF JUDGMENT: 28\/01\/2004 BENCH: B.N. Agrawal & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-39692","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nK.C. 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