{"id":50595,"date":"2000-04-26T00:00:00","date_gmt":"2000-04-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/salwan-construction-co-ors-vs-union-of-india-others-on-26-april-2000"},"modified":"2016-11-14T00:52:56","modified_gmt":"2016-11-13T19:22:56","slug":"salwan-construction-co-ors-vs-union-of-india-others-on-26-april-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/salwan-construction-co-ors-vs-union-of-india-others-on-26-april-2000","title":{"rendered":"Salwan Construction Co. & Ors. vs Union Of India & Others on 26 April, 2000"},"content":{"rendered":"
Delhi High Court<\/div>\n
Salwan Construction Co. & Ors. vs Union Of India & Others on 26 April, 2000<\/div>\n
Equivalent citations: 2000 VAD Delhi 786, 85 (2000) DLT 821, 2000 (54) DRJ 40, 2000 245 ITR 175 Delhi<\/div>\n
Author: D Jain<\/div>\n
Bench: D Jain<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
D.K. Jain, J.<\/p>\n
  ADMIT<\/p>\n
1.  With  the consent of counsel for the parties, I proceed to decide  the petition finally at this stage itself.\n<\/p>\n
2.   The petitioners – a firm and its three partners, impugn in this  petition, under Section 482 of the Code of Criminal Procedure, 1973, the legality and validity of the authorisation issued by the Commissioner of Incometax-  respondent No.3 herein, under Section 279(1) of the  Income-tax  Act, 1961  (for  short ‘the Act”) sometime in March, 1992 for  filing  complaint against  the petitioners under Section 276B of the Act, as it stood  prior to the insertion of amended Section 276B with effect from 1 April 1989,  in respect  of assessment years 1986-87 and 1987-88; consequent filing of  the
\ncomplaints   under  the  said  Section  by  the   Assistant   Commissioner, Income-tax-respondent  No.2  herein, in the Court of the  Additional  Chief Metropolitan  Magistrate,  New  Delhi on 31st March 1992 and  the  order  2 March, 1998 passed by the learned ‘ACMM dismissing the petitioner’s  application under Section 245(2) Cr.P.C. seeking discharge. Besides the said two respondents,  the  Union of India has also been imp leaded as  proforma  respondent No.1.\n<\/p>\n
3.   The  petitioner firm was awarded two contracts, one by the  Air  India and  another  by one M\/s. Modipon. The petitioners, in turn,  assigned  the contract  awarded  by  Air India to one M\/s.  Salwan  Construction  Company Private Limited, against which it was entitled to receive commission @ 2.5% of  the  receipts. The other contract was also assigned in  favour  of  one
\nAmarjit  Singh HUF and the petitioner firm was entitled to receive  commission  at  5% from the said concern. The gross receipts from  contracts  assigned  by  Air India and Modipon were  respectively  Rs.2,93,61.361\/-  and Rs.4,37,520\/-.  According to the Assessing Officer, the  petitioner,  being the contractor, was required to deduct under Section 194C(1) of the Act tax
\nat  source on the said amounts received by the said assignees  as  sub-contractors, which it failed to do. Rejecting the stand of the petitioner firm that the contracts having been assigned in entirety, there was no relationship of contractor and sub-contractor and, therefore, the provisions of the said Section were not attracted, the Assessing Officer levied penal  interest under Section 201(IA) of the Act, amounting to Rs. 1,88,270\/-, on  the petitioner vide order dated 20th January, 1992.\n<\/p>\n
4.   A notice was issued on 28 January 1992 calling upon the petitioners to show cause why prosecution proceedings be not initiated against them  under Section 276B  of the Act for failure to deduct and pay tax  as  per  the provisions of Section 194C of the Act. The petitioner reiterated its aforenoted  plea,  which  again was found to be unconvincing  by  the  Assessing Officer and this led to grant of sanction by respondent No.3 under  Section 279(1) of the Act and filing of complaints by respondent No.2 in the  Court of the ACMM.\n<\/p>\n
5.   During the pendency of proceedings before the ACMM, in the  petitioner firm’s second appeal before the Income-tax Appellate Tribunal (Tribunal for short),  by  its  order dated 23 February 1995, the Tribunal  came  to  the conclusion  that  since no income-tax was ultimately payable  by  both  the payees  namely,  M\/s.  Salwan  Construction  Company  Private  Limited  and M\/s.Amarjit Singh HUF, one being the case of loss and the other of  refund, no  interest could be recovered from the petitioners for not deducting  the same  amount of tax at source. The Tribunal also felt that since two  views were  possible on the interpretation to Section 201(1A) the one  favourable
\nto  the assessee should be adopted. Accordingly, the Tribunal  deleted  the interest  charged by the Assessing Officer. It is not in dispute  that  the Tribunal’s order has attained finality.\n<\/p>\n
6.   Armed  with the Tribunal’s order, the petitioner filed an  application under Section 245(2) Cr.P.C. for discharge, inter alia, on the ground  that :(1) non-deduction of tax at source having ceased to be a criminal  offence with  effect  from 1 April 1989, be virtue of Direct Tax  Laws  (Amendment) Act, 1987, the issue of authorisation by the Commissioner in March 1992 and filing  of complaints in pursuance thereof was per se illegal  and  invalid and  (ii) in view of the finding of the Tribunal that the  petitioner  firm was not liable to pay interest under Section 201(IA) for failure to  deduct tax at source, the petitioner could not be made liable for parallel  criminal proceedings on the same set of facts. However, these pleas did not find favour  with the learned ACMM, who accordingly dismissed  the  application. Hence this petition.\n<\/p>\n
7.   I  have heard Mr.O.S.Bajpai, learned counsel for the  petitioners  and Mr.R.D. Jolly, learned counsel for the respondents.\n<\/p>\n
8.   It  is  strenuously contended by learned counsel for  the  petitioners that after the insertion of new Section 276B with effect from 1 April 1989, irrespective  of the period of default, no complaint for failure to  deduct tax at source could be filed under the said Section, especially when  there is no saving clause even to sustain the pending prosecutions. In support of the  argument, reliance is placed on the decisions of the Supreme Court  in M\/s.  Rayala Corporation (P) Ltd. & Anr. Vs. The Director  of  Enforcement. New  Delhi AIR 1970 SC 494, J. Barai Vs. Henry Ah Hoe and Anr.  and the decisions of the Madhya Pradesh and Andhra Pradesh High  Courts respectively reported as Harikishan Vs. Union of India (1996) 217 ITR  582, Patiram  Jain and Others Vs. Union of India and others (1997) 225 ITR  409, Assistant  Commissioner of Income-tax Vs. Vijaya Finance & Ors. (1998)  231 ITR  137.  On  merits it is urged that the interest  levied  under  Section 201(IA) having been deleted by the Tribunal, prosecution under Section 276B is no longer maintainable. To substantiate the proposition, learned counsel has placed reliance on certain decisions and in particular on the decisions of  this Court in Detecon Indian Project Office Vs. Income-tax officer  and Others  (1994) 210 ITR 260 and Sequoia Construction Co. P. Ltd &  Ors.  Vs. P.P.Suri, ITO. Central Circle XX, New Delhi (1986) 158 ITR 496.\n<\/p>\n
9.   On  the other hand Mr. Jolly learned counsel for the  respondents  has vehemently contended that the complaints filed against the petitioners  are saved  by  Section 6 of the General Clauses Act, 1897. In  support  he  has relied  upon  the  decisions of the Supreme Court in T.S.  Baliah  V.  T.S. Rangaachari, Income Tax officer, Central Circle VI. Madras ,
\nTiwari  Kanhaiyalal etc.Vs. The Commissioner of Income-tax. Delhi , G.P. Nayyar Vs. State  and M\/s. P.V. Mohammad Barmay Sons Vs. Director of Enforcement .\n<\/p>\n
10.  Thus,  the main question that arises for consideration is  whether  on the  substitution  of a new Section for Section 276B, with  effect  from  1
\nApril 1989, omitting the default of non-deduction of tax at source from the ambit of the said section, a complaint for failure to deduct tax at  source during the period prior to 1 April 1989 could still be filed after the said date?\n<\/p>\n
11.  The complaints filed after the insertion of the new section, which  no longer  treats the default of non-deduction of tax at source as a  criminal offence,  are sought to be supported on the basis of the provisions of  law contained  in Section 6(e) of the General Clauses Act, which provides  that where  any Central Act repeals an enactment previously made, then unless  a different  intention appears, the said repeal shall not affect  any  right, privilege, obligation or liability acquired or incurred under any enactment so repealed.\n<\/p>\n
12.  The  question of application of Section 6 of the General  Clauses  Act came  up  for consideration before the Constitution Bench  of  the  Supreme Court  in  Rayala Corporation’s case (supra), wherein, while  dealing  with Rule  132  A  of the defense of India Rules, 1962,  promulgated  under  the defense  of  India ACt, which rules ceased to exist on the  issuance  of  a notification by the Ministry of Home Affairs on 30 March 1965, by which the defense of India (Amendment) Rules 1965 were promulgated, it was held  that language contained in clause 2 of the said rules can only offer  protection to  action  already taken while the rule was in force, but  cannot  justify initiation of new proceedings, which will not be thing done or omitted to be done under the rule but a new act of initiating a proceeding after the rule has ceased to exist. It was also held that Section 6 of the General Clauses
\nAct could not apply on the “omission” of rule 132A of the defense of  India Rules  for the obvious reason that Section 6 only applies to “repeals”  and not to “omissions”.\n<\/p>\n
13.  The scope and effect of Section 6 of the General Clauses Act  recently came  up  for consideration before the Constitution Bench  of  the  Supreme Court in Kolhapur Cane sugar Works Ltd. Vs. Union of India .\n<\/p>\n
In  that  case  the Court was considering the question  whether  after  the omission  of  old  Rule 10 and 10A of the Central Excise  Rules  and  their substitution  by  new Rule 10 vide notification dated 6  August  1977,  the proceedings  initiated by notice dated 27 April 1997 could be continued  in law.  While  holding that Section 6 was not applicable in  that  situation, their Lordships, while affirming the principles of law laid down in  Rayala
\nCorporation’s case (supra) and reiterating that “Section 6 only applies  to repeals and not to omissions”, observed as follows:\n<\/p>\n
  “It  is  not correct to say that in considering the  question  of maintainability of pending proceedings initiated under a particular  provision of the rule after the said provision  was  omitted  the Court is not to look for a provision in the newly-added  rule for continuing the pending proceedings. It is also not correct to say that the test is whether there is any provision in the  rules to the effect that pending proceedings will lapse on omission  of the rule under which the notice was issued. It is our  considered view that in such a case the court is to look to the provision in the rule which has been introduced after omission of the previous rule  to determine whether pending proceedings will  continue  or lapse.  If there is a provision therein that pending  proceedings shall  continue and be disposed of under the old rule as  if  the rule  has not been deleted or omitted then such proceedings  will continue.  If  the case is covered by Section 6  of  the  General Clauses  Act or there is pari material provision in  the  statute under  which  the  rule has been framed, in that  case  also  the pending proceedings will not be affected by omission of the rule. In  the  absence of any such provision in the statute or  in  the rule the pending proceedings would lapse on the rule under  which the notice was issued or proceedings were initiated being  deleted\/omitted.\n<\/p>\n
     The Apex Court further held as under:\n<\/p>\n
     “The position is well known that at common law, the normal effect of  repealing a statute or deleting a provision is to  obliterate it  from the statute-book as completely as if it had  never  been passed,  and the statute must be considered as a law  that  never existed.  To this rule, an exception is engrafted by  the  provisions  of Section 6(1). If a provision of a statute  is  unconditionally  omitted  without a saving clause in favour  of  pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into  effect,  it cannot be granted afterwards.  Savings  of  the nature  contained in Section 6 or in special Acts may modify  the position.  Thus  the operation of repeal or deletion  as  to  the future and the past largely depends on the saving applicable.  In a  case where a particular provision in a statute is omitted  and in its place another provision dealing with the same  contingency is  introduced without a saving clause in favour of pending  proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall not continue  but fresh proceedings for the same purpose may  be  initiated under the new provision.”\n<\/p>\n
14.  In  the light if the aforenoted settled legal position with the  regard to the applicability of Section 6 of the General Clauses Act to a provision which  has been omitted, it is evident from the plain language of  the  old
\nand new Section 276B, extracted below that the amended section  “substituted”  by the Direct Tax Law (Amendment) Act, 1987 is not by way of a  repeal of the old section. The term “repeal” connotes the abrogation of one Act by another,  whereas the “amendment” of a statute means an alteration  in  the law  existing, leaving some part of the original still standing.  As  noted above,  in the present case, it is merely an omission of a part of the  old Section in the newly substituted provision.\n<\/p>\n
     Old Provision:\n<\/p>\n
     “276B.  Failure to deduct or pay tax:- If a person, without  reasonable  cause  or excuse, fails to deduct  or  after  deducting, fails  to pay the tax as required by or under the  provisions  of sub-section  (9)  of section 8OE or Chapter XVII-B, he  shall  be punishable:-\n<\/p>\n
     (i)  in  a  case where the amount of tax which he has  failed  to deduct or pay exceeds one hundred thousand rupees, with  rigorous imprisonment  for a term which shall not be less than six  months but which may extend to seven years and with fine;\n<\/p>\n
     (ii) In  any other case, with rigorous imprisonment for  a  term which shall not be less than three months but which may extend to three years and with fine.”\n<\/p>\n
     New Provision:\n<\/p>\n
     “276B  Failure  to pay the tax deducted at source – If  a  person fails  to the credit of the Central Government, the tax  deducted at source by him as required by or under the provisions of  Chapter  XVII-B, he shall be punishable with  rigorous  imprisonment for  a term which shall not be less than three months  but  which may extend to seven years and with fine.”\n<\/p>\n
15.  In this view of the matter I am of the considered opinion that Section 6 of the General Clauses Act will not be attracted in present case and thus cannot  be  pressed  into service to sustain  the  prosecution  proceedings initiated only after the omission of old Section 276B and insertion of  new
\nSection 276B with effect from 1 April 1989.\n<\/p>\n
16.  In  the light of the recent decision of the Supreme Court in  Kolhapur Cane sugar Works case (supra) and the view I have arrived at in the  instant case, I deem it unnecessary to deal with the aforenoted cases cited by both the counsel.\n<\/p>\n
17.  Having  held so, the next question to be examined in the light of  the observation  of the Apex Court in Kolhapur Cane sugar Works case (supra)  is whether  in  the  newly introduced provision there is a  saving  clause  in favour  of pending proceedings or is it just an unconditional  omission.  A bare perusal of the aforenoted provisions read with the object behinds  the amendment of Section 276B and simultaneous introduction of new Section 271C in the Act, providing only for levy of penalty on failure to deduct tax  at source, makes it clear that with effect from 1 April 1989, the  Legislature intended  to  treat the default of failure to deduct tax at source  not  as seriously as a default of deducting the tax and not paying the same to  the credit  of the Central Government. From the contents of the aforenoted  two provisions of law it is evident that it does not contain any saving  clause for  initiating  proceedings  under  the old  Section  after  it  has  been amended\/omitted  for  the default of failure to deduct tax at  source.  Besides,  it could be reasonably inferred from the intention behind  the  new provision,  that fresh proceedings, if any , under Section 276B of the  Act after  1  April 1989 have to be initiated only in accordance with  the  new provision.\n<\/p>\n
18.  In  view of the foregoing discussion, I have no hesitation in  holding that  the complaints filed on 31 March 1992 under Section 276B of  the  Act for failure on the part of the petitioner firm to deduct tax at source  are clearly not maintainable and deserve to be quashed. I order accordingly.\n<\/p>\n
19.  I  may, however, hasten to add that in this judgment I have not  examined  the question of survival of those prosecution proceeding  which  were already  initiated before the insertion of new Section, because that  issue does not arise in present case.\n<\/p>\n
20.  Since the petitioners succeed on the aforenoted main ground, it is not necessary to go into the question whether the petitioners otherwise deserve to  be discharged on the basis of the order of the Tribunal,  deleting  the interest charged under Section 201(A) of the Act.\n<\/p>\n
21.  In the result, the petition is allowed; the complaints in question are quashed and the petitioners are discharged. There will, however be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Salwan Construction Co. & Ors. vs Union Of India & Others on 26 April, 2000 Equivalent citations: 2000 VAD Delhi 786, 85 (2000) DLT 821, 2000 (54) DRJ 40, 2000 245 ITR 175 Delhi Author: D Jain Bench: D Jain ORDER D.K. Jain, J. ADMIT 1. With the consent of counsel for […]<\/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":[14,8],"tags":[],"class_list":["post-50595","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nSalwan Construction Co. & Ors. vs Union Of India & Others on 26 April, 2000 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/salwan-construction-co-ors-vs-union-of-india-others-on-26-april-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Salwan Construction Co. & Ors. vs Union Of India & Others on 26 April, 2000 - 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