Search Results For: prosecution


Ramprakash Biswanath Shroff vs. CIT (TDS) (Bombay High Court)

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DATE: October 15, 2018 (Date of pronouncement)
DATE: January 5, 2019 (Date of publication)
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TDS on salaries: Default by employers in not issuing Form 16 TDS certificates to employees prima facie makes employers liable to prosecution u/s 405 of the Indian Penal Code (IPC). Dept should provide information of such defaulters so that those seeking employment etc would know in advance as to how the employers are complying with law

During the course of arguments, we have invited Mr.Suresh Kumar’s attention to Section 405 of the Indian Penal Code, 1860 and we find that prima facie, the reading of this Section together with its explanation furnishes enough ground to bring the persons like respondent Nos.2 to 5 to book by applying provisions of Section 405 of the Indian Penal Code to them. We do not see any record till date of the Department of Revenue having applied such a provision in the prosecution launched against such defaulters

Srinidhi Karti Chidambaram vs. PCIT (Madras High Court)

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DATE: November 2, 2018 (Date of pronouncement)
DATE: November 16, 2018 (Date of publication)
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Entire law on whether complaint and sanction for prosecution of offenses can be quashed as being without proper application of mind explained in the context of s. 55 of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 (All judgements on the subject of prosecution of offenses discussed)

Before proceeding with any action, it is the duty of the assessing officer to arrive at a conclusion, as to whether, there is an undisclosed income under Section 2(11) and a duty is cast on the assessing officer to form an opinion, under Section 2(11). Expression, “undisclosed source of investment” depends on the existence of the above and the opinion is dependent on each one of the facts. Show cause notice issued is totally extraneous to Section 2(11) of the Act. At this juncture, it is pertinent to consider, what “satisfaction” means. “Satisfaction” means to be satisfied with a state of things, meaning thereby, to be satisfied in one’s own mind. Satisfaction is essentially a conclusion of mind. The word “satisfied” means, “makes up its mind”

Arun Arya Vs. ITO (J&K High Court)

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DATE: September 28, 2018 (Date of pronouncement)
DATE: October 13, 2018 (Date of publication)
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Prosecution u/s 276-C/277: S. 278E carves out an exception to the rule of mens rea. The burden of proving the absence of mens rea is upon the accused. The absence needs to be proved not only to the basic threshold of “preponderance of probability” but “beyond reasonable doubt”. In every prosecution case, the Court shall always presume culpable mental state and it is for the accused to prove the contrary beyond reasonable doubt. This presumption is a rebuttable one

When a calculating tax dodger finds it a profitable proposition to carry on evading taxes over the years, if the only risk to which he is exposed is a monetary penalty in the year in which he happens to be caught. The public in general also tends to lose faith and confidence in tax administration when a tax evader is caught, but the administration lets him get away lightly after paying only a monetary penalty- when money is no longer a major consideration with him if it serves his business interest

Supernova System Private Limited vs. CCIT (Gujarat High Court)

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DATE: September 17, 2018 (Date of pronouncement)
DATE: September 29, 2018 (Date of publication)
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S. 276C/ 279 Compounding of offenses: The expression "amount sought to be evaded" in CBDT's compounding guidelines dated 23.12.2014 means the amount of "tax sought to be evaded" and not the amount of "income sought to be evaded"

In the prescription of punishment thus, when there is a reference to amount sought to be evaded, it must be seen in light of the willful attempt on the part of the concerned person to evade tax, penalty or interest. This provision thus, links the severity of punishment on the amount sought to be evaded and thus, in turn has relation to the attempt at evasion of tax, penalty or interest. Thus, when the CBDT circular refers to the amount sought to be evaded, it must be seen and understood in light of the provisions contained in section 276C(1) and in turn must be seen as amount sought to be evaded. 100% of tax sought to be evaded would be the basic compounding fees

ITO vs. VCI Hospitality Ltd (CMM)

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DATE: August 28, 2018 (Date of pronouncement)
DATE: August 29, 2018 (Date of publication)
AY: 2008-09
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S. 276B, 279(1), 278E Prosecution for non-deposit of TDS: In the case of default, Mens rea has to be presumed to exist. It is for the accused to prove the contrary and that too beyond reasonable doubt. The plea that default in payment of TDS occurred due to delay by department in refunding excess TDS due to the assessee is not acceptable because amount deducted by way of TDS has to be deposited within prescribed time irrespective of any counter claim of the assessee

The plea of accused that since the complainant department has delayed the refund of TDS, therefore, the default occurred is not maintainable as the amount deducted by way of TDS is to be deposited within prescribed time irrespective of any counter claim of the assessee. CW-1 has stated that the refund takes about six months for processing and accused cannot take benefit of delay in release of the refund amount. Another plea of recession in the hospitality section is also not maintainable as discussed above

Indo Arya Central Transport Limited vs. CIT (Delhi High Court)

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DATE: March 12, 2018 (Date of pronouncement)
DATE: March 31, 2018 (Date of publication)
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S. 279 Prosecution for late deposit of TDS offense: Principles applicable to launching prosecution set out. If the assessee is able to make out that cognizance was not justified and as per law they can challenge and question the summoning order by way of petition u/s 397 read with Section 401 of the Code of Criminal Procedure, 1973 or if permissible, by way of a petition under Section 482 of the Code

It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution

Vikram Singh vs. UOI (Delhi High Court)

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DATE: January 23, 2018 (Date of pronouncement)
DATE: January 27, 2018 (Date of publication)
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S. 279(2): Entire law on the compounding of offenses u/s 276C, 277 read with S. 278D explained in the context of whether the CBDT Guidelines on compounding of offenses dated 23.12.2014 prescribing eligibility conditions and the formula for calculating the compounding fee are valid or unreasonable

The petitioner having voluntarily agreed and undertaken to the department to pay the compounding charges and to withdraw his appeal, ought to be directed to be bound down by the same. It is a settlement process voluntarily invoked by the petitioner in order to escape criminal prosecution under the Act. Since an accused may have to suffer severe consequences for non-payment of tax, if he is held to be guilty, it is not open to him to challenge the reasonableness of the same. The petitioner had consciously undertaken to abide by the decision of the Committee constituted for compounding the offences

Ambience Hospitality Pvt. Ltd vs. DCIT (Delhi High Court)

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DATE: November 23, 2017 (Date of pronouncement)
DATE: November 30, 2017 (Date of publication)
AY: 2007-08
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S. 276C/277 Prosecution: Submission that claim of depreciation on land was a “mere clerical mistake” is not acceptable if the assessee did not file a revised return to correct the alleged mistake. A claim in a return which is scrutinized by the auditors and the directors cannot be considered as a mere accounting mistake

It is a manifest procedure that before filing of the Income Tax return for the assessment year 2007-2008 by the petitioner, the same is scrutinized, firstly, by the auditors of the company. Secondly, by the directors of the company before endorsing their signatures on the final Balance Sheet. Therefore, it cannot be considered as a mere accounting mistake

Rajasthan Tax Consultants Association vs. UOI (Rajasthan High Court)

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DATE: September 20, 2017 (Date of pronouncement)
DATE: September 22, 2017 (Date of publication)
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GST: As the system is not working and is required to be corrected, taxpayers who are unable to log-in should inform the concerned officials. No coercive action (penal interest, late fees and prosecution) shall be levied against the clients of the Petitioners' members referred in the petition and those who inform by email. The composition Scheme is extended upto 30.9.2017 and desirous assessee can apply

Looking to the averments which are made in the petition and the reply which has been filed, it appears that the system is not working upto the level and the same is required to be corrected & updated to meet requirements. In the meantime, no coercive action (penal interest, late fees and prosecution) against any of the client of the petitioners members who are referred in the petition and are informing by email, will be protected

V. A. Haseeb and Co. (Firm) vs. CCIT (Madras High Court)

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DATE: September 2, 2016 (Date of pronouncement)
DATE: November 7, 2016 (Date of publication)
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S. 279(2) Compounding of offenses: The fact that the assessee has been convicted of an offense does not mean that the application for compounding of the offense is not maintainable. Under the guidelines, the competent authority has to examine the merits of the case and decide whether there is a case for compounding. There are no fetters on the powers of the competent authority under the guidelines. An appeal filed against a conviction is a "proceeding" for s. 279(2).

The power of compounding is exercisable when proceedings are pending. In the case on hand, the sentence imposed on the petitioner has been suspended by the Appellate Court and the appeal is still pending. Therefore, it has to be seen as to whether that conviction by the Criminal Court should be the only reason for rejecting the petitioner’s application for compounding the offence. Clause 4.4 of the guidelines states that cases not to be compounded. It commences with a non obstante clause stating that notwithstanding anything contained in the guidelines, the category of cases mentioned in clauses (a) to (g) should normally not be compounded. Thus, the guidelines does not specifically place an embargo on the competent authority to consider the application for compounding merely on the ground when the assessee has been convicted by a court of law

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