2018 (6) TMI 1473 - HC - Income Tax

Entitlement to person issued with a notice under Rule 73 of the Second Schedule of the Income Tax Act 1961 to invoke section 438 of Cr.P.C. - recovery of the tax dues determined under section 222 of the Act - Held that - Rule 73 specifically provides that no order for the arrest and detention in a civil prison of a defaulter could be made unless the Tax Recovery Officer has issued and served a notice upon the defaulter calling upon him to appear before him on the date specified in the notice and to show cause as to why he should not be committed to civil prison. When a defaulter appears before the Tax Recovery Officer, he shall be given an opportunity of hearing and only thereafter, an order could be passed for detention of the defaulter in the civil prison. Therefore, the apprehension of the petitioner that on issuance of a show cause notice under Rule 73 of the Second Schedule of the Income Tax Act, he has a reason to believe that he would be arrested and detained in prison is wholly misconceived and misplaced. Thus by issuance of notice under Rule 73 of the Second Schedule of the Income Tax Act, the petitioner is not accused of committing any non-bailable offence and the said notice does not give rise to any apprehension of immediate arrest so as to invoke the jurisdiction of the Sessions Court or High Court under section 438 of Cr.P.C. Both the constituents of section 438 of Cr.P.C. are not attracted to the facts of this case. As a result, hold that the petition under section 438 of Cr.P.C. is not maintainable. Criminal petition is dismissed.

Summary

Issues Involved:
1. Whether a person issued with a notice under Rule 73 of the Second Schedule of the Income Tax Act, 1961 is entitled to invoke section 438 of Cr.P.C.
2. The maintainability of the petition under section 438 of Cr.P.C. against the show cause notice issued under Rule 73 of the Second Schedule of the Income Tax Act.
3. The jurisdiction of the Sessions Court and the High Court under section 438 of Cr.P.C. in the context of recovery proceedings under the Income Tax Act.
4. The applicability of section 276C(2) of the Income Tax Act in the context of the petitioner's apprehension of arrest.
5. The procedural requirements and remedies available under the Second Schedule of the Income Tax Act for recovery proceedings.

Detailed Analysis:

1. Entitlement to Invoke Section 438 of Cr.P.C.:
The primary issue is whether a person issued with a notice under Rule 73 of the Second Schedule of the Income Tax Act, 1961 is entitled to invoke section 438 of Cr.P.C. The court examined the context in which the notice was issued, which was for the recovery of tax dues and not for any criminal accusation. The petitioner had approached the court seeking anticipatory bail under section 438 of Cr.P.C. due to apprehension of arrest following the notice.

2. Maintainability of the Petition under Section 438 of Cr.P.C.:
The respondent raised objections regarding the maintainability of the petition under section 438 of Cr.P.C., arguing that the show cause notice issued under Rule 73 is not an accusation of a non-bailable offence. The court noted that Rule 73 provides a mechanism for recovery of tax dues and does not constitute a criminal accusation. Therefore, the petition under section 438 of Cr.P.C. was found to be not maintainable as it did not involve an accusation of a non-bailable offence.

3. Jurisdiction under Section 438 of Cr.P.C.:
The court discussed the jurisdiction of the Sessions Court and the High Court under section 438 of Cr.P.C. It was emphasized that section 438 is applicable only when there is an accusation of a non-bailable offence. The court concluded that the notices issued to the petitioner did not allege the commission of any offence under the Indian Penal Code or the Income Tax Act, thus rendering section 438 inapplicable.

4. Applicability of Section 276C(2) of the Income Tax Act:
The petitioner argued that the notice under Rule 73 should be construed in conjunction with section 276C(2) of the Income Tax Act, which deals with willful attempt to evade tax and is a non-bailable offence. The court clarified that section 276C(2) pertains to penal provisions for tax evasion, whereas the notice under Rule 73 was for recovery proceedings and not for prosecuting the petitioner for tax evasion. Therefore, the apprehension of arrest under section 276C(2) was found to be misplaced.

5. Procedural Requirements and Remedies under the Second Schedule:
The court elaborated on the procedural requirements under the Second Schedule of the Income Tax Act for recovery proceedings, including the issuance of a show cause notice under Rule 73, the opportunity for the defaulter to show cause, and the conditions under which detention in civil prison may be ordered. The court highlighted that the petitioner was provided with adequate procedural safeguards and remedies, including the right to appeal under Rule 86. The apprehension of immediate arrest was deemed unfounded as the process involves multiple steps before any detention could occur.

Conclusion:
The court concluded that the petitioner was not accused of committing any non-bailable offence and that the notice under Rule 73 did not give rise to any apprehension of immediate arrest. Therefore, the petition under section 438 of Cr.P.C. was not maintainable and was dismissed. The court emphasized that the proceedings were for recovery of tax dues and not for criminal prosecution, and the petitioner had adequate remedies under the Income Tax Act to address any grievances.