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14-12-2018, Sayarmull Surana, Section 276C(2), 245(1), 482, HIGH COURT OF MADRAS

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4 months 3 weeks ago #8176 by amit
Section - 276C(2), 245(1), 482, 276C, 397, 401
Order Date - 14-12-2018
Favouring - Set Aside
Appellant - Sayarmull Surana
Respondent - ITO
Justice - P.N. PRAKASH
Citation - 1218Taxpundit326
Appeal No. - Crl.R.C. No.111 of 2011 & Crl.M.P. No.1 of 2011
Asstt. Year - 1998-1999



This Criminal Revision Case has been preferred seeking to set aside the order dated 03.01.2011 passed by the Additional Chief Metropolitan Magistrate (E.O.-I), Chennai in Crl.M.P. No.2435 of 2010 in E.O.C.C. No.82 of 2005 and thereby, discharge the accused.

2 The facts in brief, leading to the filing of this criminal revision case, are as under:

2.1 The Income Tax Department launched a prosecution in E.O.C.C.No.82 of 2005 before the Additional Chief Metropolitan Magistrate (E.O.I), Egmore, Chennai, against Sayarmull Surana, the petitioner herein/accused, for the offence under Section 276C(2) of the Income Tax Act, 1961 (for short “the IT Act”).

2.2 It is the case of the Income Tax Department that for the assessment year 1998-1999, the accused filed income tax returns on 16.06.1998, wherein, he had shown his total income at Rs.48,150/-; the Income Tax Department conducted investigation and found that his total income was Rs.29,05,126/- and determined the tax payable, including interest, at Rs.16,02,601; the accused filed an appeal before the Commissioner of Income Tax (Appeals) and by order dated 15.09.2003, the Commissioner of Income Tax (Appeals) determined the total income of the accused and the tax payable at Rs.26,69,470/- and Rs.14,84,199/- respectively; thereagainst, the accused filed an appeal before the Income Tax Appellate Tribunal; however, the Income Tax Appellate Tribunal dismissed his stay petition on 23.02.2004; hence, the accused is liable to be punished under Section 276C(2) of the IT Act for non-payment of the determined tax.

2.3 On summons, the accused appeared and the prosecution commenced in terms of Chapter XIX-B - Cases instituted otherwise than on police report of the Cr.P.C.. On behalf of the Income Tax Department, three witnesses were examined and they were cross-examined by the accused. In all, 35 exhibits were marked through the officials, both in examination-in-chief as well in cross-examination. After the Income Tax Department closed the pre-charge evidence, the accused filed Crl.M.P.No.2435 of 2010 in E.O.C.C. No.82 of 2005 under Section 245(1) Cr.P.C. for discharge, which has been dismissed by the trial Court by order dated 03.01.2011, aggrieved by which, the accused is before this Court.

3 At the outset, it may be necessary to state here that the accused has not filed this petition to quash the prosecution at the threshold under Section 482 Cr.P.C. The Trial Court has recorded the precharge evidence of three prosecution witnesses and on the closure of the prosecution evidence, the accused prayed for discharging him from the prosecution, which plea was negatived, challenging which, the accused has filed the present criminal revision case.

4 Before adverting to the rival submissions on facts, it may be apposite to allude to Section 276C(2) of the IT Act which reads as under: 276C(2) If a person wilfully attempts in any manner whatsoever to evade the payment of any tax, penalty or interest under this Act, he shall, without prejudice to any penalty that may be imposable on him under any other provision of this Act, be punishable with rigorous imprisonment for a term which shall not be less than three months but which may extend to two years and shall, in the discretion of the Court, also be liable to fine.” Explanation: For the purposes of this section, a wilful attempt to evade any tax, penalty or interest chargeable or imposable under this Act or the payment thereof shall include a case where any person --

(i) has in his possession or control any books of account or other documents (being books of account or other documents relevant to any proceeding under this Act) containing a false entry or statement; or

(ii) makes or causes to be made any false entry or statement in such books of account or other documents; or

(iii) wilfully omits or causes to be omitted any relevant entry or statement in such books of account or other documents; or

(iv) causes any other circumstance to exist which will have the effect of enabling such person to evade any tax, penalty or interest chargeable or imposable under this Act or the payment thereof.

The expression “wilfully admits” employed in the above provision is an inclusive one, despite which, it does not, in any way, change the common and fundamental meaning of it. The allegation against the accused in this case cannot be fitted into any of the clauses, viz., clause (i) to clause (iv) set out in the Explanation.

5 The learned counsel for the accused submitted that the complaint is not for evasion of tax, but, is for evasion of payment of tax.

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