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DATE: March 25, 2021 (Date of pronouncement)
DATE: March 27, 2021 (Date of publication)
AY: 2015-16
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CITATION:
Vivad se Vishwas Act: The CBDT's answer to question No.73 that the ineligibility u/s 9(a)(ii) relates to an assessment year and if for that assessment year a prosecution has been instituted, then the taxpayer would not be eligible to file declaration for the said assessment year even on issues not relating to prosecution would not only be illogical and irrational but would be in complete deviation from section 9(a)(ii). On a literal or purposive interpretation, the only exclusion visualized under the said provision is pendency of a prosecution in respect of tax arrear relatable to an assessment year as on the date of filing of declaration and not pendency of a prosecution in respect of an assessment year on any issue. To hold that an assessee would not be eligible to file a declaration because there is a pending prosecution for the assessment year in question on an issue unrelated to tax arrear would defeat the very purport and object of the Vivad se Vishwas Act

The prosecution against the petitioner has been initiated under section 276-C(2) of the Act because of the delayed payment of the balance amount of the self-assessment tax. Such delayed payment cannot be construed to be a tax arrear within the meaning of section 2(1)(o) of the Act. Therefore such a prosecution cannot be said to be in respect of tax arrear. Because such a prosecution is pending which is relatable to the assessment year 2015-16, it would be in complete defiance of logic to debar the petitioner from filing a declaration for settlement of tax arrear for the said assessment year which is pending in appeal before the Tribunal.

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DATE: August 5, 2019 (Date of pronouncement)
DATE: January 27, 2021 (Date of publication)
AY: 1994-95
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CITATION:
S. 482 CrPC: Prosecution launched in 2008 u/s 276C, 277 & 278B of the Income-tax Act, 1961 for alleged tax evasion in AY 1994-95 deserves to be quashed because the assessee has paid the tax and the penalty & also taking into account the year in which the alleged offence was committed. The assessee has been paying income-tax regularly & has not been prosecuted for any false disclosure either earlier or thereafter. It would only be in the nature of harassment to the petitioners, and an abuse of the process of the Court, if this case is allowed to be continued. (Note: The Supreme Court has directed issue of notice on the Dept's SLP)

This Court, in a number of cases, has defined the scope and ambit of the powers under Section 482 Cr.P.C. A High Court, exercising its power under the aforesaid section, has an inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent the abuse of the process of the Court. It has been clarified that the inherent powers of the Court under Section 482 Cr.P.C. can be exercised to give an effect to an order under the Cr.P.C., to prevent the abuse of the process of the Court and to otherwise secure the ends of justice. No doubt, a caution has been laid that such powers are to be exercised sparingly, carefully and with much circumspection, but in a case of this kind, where the entire liability has been paid to the Government and there has not been any loss to the public exchequer, allowing this case to be continued after eleven years would only be an abuse of the process of the Court.

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DATE: February 20, 2019 (Date of pronouncement)
DATE: September 7, 2019 (Date of publication)
AY: -
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CITATION:
Liability of professionals acting as Non-executive directors: Practicing professionals are prohibited from acting as full time directors. They can only act as non-executive directors not performing administrative duties. Such persons cannot be prosecuted for offenses committed by the company. it will be a travesty of justice to prosecute all Directors if the offense is committed without their knowledge. The accounts are signed by such directors in a routine manner and they are not subject to vicarious liability (Homi Phiroz Ranina & Ors. vs. State of Maharashtra 2003 (3) Mh.L.J. 34 followed)

In Homi Phiroz Ranina & Ors. vs. State of Maharashtra & Ors., the complaint was filed for delay in remitting the tax deducted. The applicant has taken stand that he was non- executive Director of the company and they are also practising advocates and, therefore, they are prohibited under the law to act as full time directors. They could only act as non-executive directors not exercising administrative powers or peforming administrative duties. It is held that unless the complaint discloses a prima facie case against the applicant/accused of their liability and obligation as principal officers in the day to day affairs of the company as Directors of the company, the applicants cannot be prosecuted for the offences committed by the company and held that it will be a travesty of justice to prosecute all the Directors if the offence is committed without their knowledge

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DATE: June 26, 2019 (Date of pronouncement)
DATE: July 13, 2019 (Date of publication)
AY: -
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CITATION:
Prosecution u/s 276C for tax evasion: If the assessee's appeal against levy of s. 271(1)(c) penalty for concealment of income is allowed & has become final, the quashing of prosecution is automatic. The High Court can exercise its inherent jurisdiction to quash the prosecution and not indulge in the empty formality of directing the assessee to approach the trial Magistrate (K. C. Builders 265 ITR 562 (SC) followed)

The subject matter of the complaint being concealment of income arrived at on the basis of the finding of the assessing officer, if the Tribunal has set aside the order of concealment and penalties, there is no concealment in the eye of law and, therefore, the prosecution cannot be proceeded with by the complainant and further proceedings will be illegal and without jurisdiction

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DATE: June 25, 2019 (Date of pronouncement)
DATE: July 3, 2019 (Date of publication)
AY: -
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CITATION:
S. 192 TDS/ 276B: A complaint by the Dept regarding 12 month delay in paying TDS to the Govt is maintainable. Deposit of TDS with interest does not absolve criminal liability. Plea that delay was caused due to financial hardship has to be proved. However, as there is no allegation by the Dept that accused is irregular in paying taxes other than the case in hand, the minimum punishment of 3 months rigorous imprisonment and fine will have to be awarded. The Court has no discretion to reduce the sentence

In view of aforesaid reasons arguments advanced on behalf of defence holds no ground. Defence utterly failed to prove the submissions by leading evidence as stated above. Considering the above referred authority and the present case, it appears that if the payment is made at belated stage then it will be treated as default and appropriate action can be taken under this Act. It also clear that deposit of TDS with delay does not absolve criminal liability. If it is considered that accused paid the amount after period of 12 months, in such circumstance, complaint is maintainable and it does not absolve criminal liability of the accused persons

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DATE: April 26, 2019 (Date of pronouncement)
DATE: June 27, 2019 (Date of publication)
AY: -
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CITATION:
S. 276B TDS Prosecution: Mere delay in depositing TDS within the time limit prescribed in S. 200 & Rule 30 is an offense sufficient to attract s. 276B. The fact that the TDS has been deposited subsequently does not absolve the offense. The fact that penalty u/s 221 has not been levied is not relevant because there is an admitted delay in depositing TDS.

Once a statute requires to pay tax and stipulates period within which such payment is to be made, the payment must be made within that period. If the payment is not made within that period, there is default and an appropriate action can be taken under the Act. Interpretation canvassed by the learned counsel would make the provision relating to prosecution nugatory

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DATE: April 25, 2019 (Date of pronouncement)
DATE: June 1, 2019 (Date of publication)
AY: -
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CITATION:
S. 276B Prosecution for delay in payment of TDS: The default is complete if the TDS is not deposited in time. Late deposit does not absolve the accused. The accused has no right to retain the TDS amount and use it for any other purpose. Pleas of financial problem, incompetent staff, accountant's negligence, unawareness about law etc are not acceptable as a defense (Madhumilan Syntex AIR 2007 SC (148) followed)

Considering all the discussion and record, it clear that the accused deducted TDS amount for the relevant financial year 20092010 but failed to deposit the TDS amount with Government account within stipulated time. The accused is responsible person to pay the amount within time. The factum of non deposit of tax amount within time has been proved and admitted by the accused during statement recorded u/s. 313 of Cr.P.C. Thus, no further evidence is required to prove the case of the complainant. Admission is the best evidence to prove the allegations. Thus, in view of aforesaid case laws and admission by the accused, the case of complainant stands proved. All the facts clearly indicates that accused deducted the TDS for the relevant period and did not deposit the same with Government account within stipulated period and withheld the same for her own use. Accused can not be allowed to use the tax amount, so deducted for any other purpose. The TDS deducted on behalf of the Government and should be deposited in Government account. Deductor is not supposed to finance their business through Government money. Therefore, considering the evidence available on record, I come to conclusion that the accused is the person to pay tax within time and accused failed to deposit TDS within time. Therefore, the complainant has proved the case against the accused beyond reasonable doubt and proved the guilt of the accused u/s. 276B of I.T. Act.

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DATE: December 14, 2018 (Date of pronouncement)
DATE: February 27, 2019 (Date of publication)
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CITATION:
S. 276C Prosecution: Prosecution should not be launched hurriedly by the Dept during the pendency of case before the ITAT. The law of limitation u/s 468 Cr.P.C. for criminal prosecution has been excluded by the Economic Offences (Inapplicability of Limitation) Act, 1974 & so there is no need for hasty action. Meaning of "wilful attempt to evade tax" explained (All imp judgements referred).

The very edifice on which the prosecution was launched against the accused, has crumbled like a pack of cards. There was no necessity for the Income Tax Department to have launched the prosecution hurriedly since the law of limitation under Section 468 Cr.P.C. for criminal prosecution has been excluded by the Economic Offences (Inapplicability of Limitation) Act, 1974. In fact, even in the complaint, the Income Tax Officer has stated that the accused has approached the Income Tax Appellate Tribunal. This shows that the Income Tax Officer was aware of the fact that the accused is agitating his case before the Income Tax Appellate Tribunal, which is the final fact-finding body

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DATE: October 15, 2018 (Date of pronouncement)
DATE: January 5, 2019 (Date of publication)
AY: -
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CITATION:
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

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DATE: November 2, 2018 (Date of pronouncement)
DATE: November 16, 2018 (Date of publication)
AY: -
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CITATION:
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”

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