2003 (7) TMI 55 - HC - Income Tax

In the writ petition the appellant-company challenged the decision of the respondents to initiate prosecution against the appellant under section 276B of the Income-tax Act, 1961 - it would not be proper for us to make any observations in respect thereof in these writ proceedings, although we have had occasion to examine the sanction granted. We, therefore, refrain from doing so, since, in our view, the appellant will get ample opportunity to question the validity of the sanction at the time of trial - It is for the appellant to produce sufficient evidence for non-deposit of the tax deducted at source during the criminal trial to avail of the benefit of section 278AA - appeal and the connected application are accordingly dismissed.

Summary

Issues:
Appeal involving a question of law, stay of operation of judgment, challenge to prosecution under section 276B of the Income-tax Act, 1961, grant of sanction for prosecution, default in depositing tax deducted at source, financial crisis as a reason for default, discretion in granting sanction for prosecution, application of mind by the sanctioning authority, communication of decision to initiate prosecution, validity of sanction, opportunity for accused to question the validity of sanction, administrative nature of grant of sanction, safeguards against frivolous prosecutions, admission of default by appellant, consideration of materials before granting sanction, imposition of penalty, questioning the validity of sanction in writ proceedings, opportunity to question the validity of sanction during trial.

Detailed Analysis:

The appeal involved a question of law regarding the challenge to the decision of the respondents to initiate prosecution against the appellant under section 276B of the Income-tax Act, 1961, for failure to deposit tax deducted at source. The learned single judge dismissed the writ petition, stating that pre-empting criminal proceedings was not justified unless it could be shown that the allegations did not constitute an offense under section 276B. The appellant contended that even if the allegations constituted an offense, the grant of sanction for prosecution was not automatic and the circumstances did not warrant it.

The appellant argued that the default in depositing tax deducted at source was due to severe financial crisis, not intentional evasion. The company had been allowed to pay off the dues in installments without penalty, which it did. The appellant emphasized that prosecution should not automatically follow such defaults, and sanction for prosecution required the authority to apply its mind to all relevant factors, including mitigating circumstances.

The appellant cited various legal precedents to support the contention that the sanction for prosecution should not be an automatic formality but should involve a genuine satisfaction by the sanctioning authority based on a thorough consideration of the facts and evidence. The appellant also highlighted the importance of communication of the decision to initiate prosecution and the opportunity to question the validity of the sanction during the trial.

On the other hand, the Additional Solicitor General argued that the grant of sanction was an administrative action, and no opportunity of hearing was required before granting it. The authorities had to be satisfied based on existing materials that the situation warranted prosecution. It was contended that safeguards against frivolous prosecutions were enshrined in the relevant provisions of the Income-tax Act, and the authority had considered the matter before granting sanction.

The court agreed with the Additional Solicitor General that no interference was necessary in the appeal. It was noted that the appellant could benefit from section 278AA of the Income-tax Act if sufficient and good reasons for the default were proven. The court refrained from making observations on the grant of sanction, stating that the appellant would have the opportunity to question its validity during the trial.

In conclusion, the court dismissed the appeal and the connected application, emphasizing that the appellant needed to produce evidence during the criminal trial to avail the benefit of the relevant provisions of the Income-tax Act. The judgment was delivered by two judges, Altamas Kabir J. and Alok Kumar Basu J., concurring on the decision to dismiss the appeal.