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TMI Blog2016 (9) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioner : Mr. R. Narendran For the Respondent : Mr. T. Pramod Kumar Chopda ORDER Heard Mr.R.Narendran, learned counsel appearing for the petitioner, and Mr.T.Pramod Kumar Chopda, learned Senior Standing Counsel for the respondent/Income Tax Department. 2. This Writ Petition has been filed to quash the order passed by the respondent/Chief Commissioner of Income Tax-TDS, dated 10.08.2015. 3. The abovesaid order was passed under Section 279 (2) of the Income Tax Act, 1961 (hereinafter, referred to as 'the Act'), whereby the Chief Commissioner of Income Tax TDS has rejected the petitioner's Application for compounding the offence committed by the petitioner under Section 276 B (at 5% per month for the period of default) and under Section 276 B read with Section 278 B (at 10% of the main offence) of the Act, for the assessment year 1983-84. 4. From the statement of facts, which is appended as Annexure-A to the impugned order, the Chief Commissioner has perused the guidelines given by CBDT, dated 16.05.2008, and stated that, considering the nature, magnitude and conduct of the assessee, and that Non Bailable Warrant was issued to the assessee, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dance with law. This request was acceded to, by the Principal Sessions Court, by its order, dated 28.04.2015, wherein, while granting permission, the Principal Sessions Judge pointed out that the offences are compoundable, hence, leave is granted to the competent Authority, i.e., Chief Commissioner of Income Tax-TDS for compounding the offences. Thereupon, the application has been taken up and rejected by the Chief Commissioner, by the order impugned herein, on the ground that the conduct of the assessee/petitioner as well as the conviction would dis-entitle the petitioner for compounding the offences. 6. As admitted by the respondent, in the counter affidavit, cases have been pending since 1999. One of the partners of the Firm, viz. Mohammed Athaullah passed away during the pendency of the proceedings and the charges against him stood abated. In such circumstances, it is to be seen as to whether, merely because there is conviction against the petitioner, does it prevent the Chief Commissioner from exercising his power to compound the offences. 7. This Court had an occasion to consider somewhat an identical issue, in the case of (R.Inbavalli Vs. The Government of India, Minis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue. At this stage it would be beneficial to quote the relevant paragraphs of the judgement of the Hon'ble Division Bench, which reads as follows:- This Court carefully considered the submission of counsel for both sides. The plea of the respondent is that Section 279 (2) of the Act permits the appellants to compound the offence either before or after institution of the proceedings, which power is not exercised without any valid reasons; that when similarly placed person was convicted and whose conviction was confirmed by the appellate court and pending revision before this Court in Crl.R.C. No. 588 of 1996, the assessee has filed similar petition for compounding the offence, which was entertained by the appellants after obtaining leave by filing Crl.M.P. No. 984 of 2000 in Crl.R.C. No. 588 of 1996, while so, refusing the same relief to the respondent, where the trial court alone convicted her and the appeal is pending, is discriminatory. Now we look into Section 279 (2) of the Act, which reads as under:- 279.Prosecution to be at instance of Chief Commissioner or Commissioner. (1) .... (2) Any offence under this Chapter may either before or af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... left open for consideration by the appellate authorities which has the power to review the entire evidence subject, of course, to the prescribed statutory limitations. But in the case of revision whatever powers the revisional authority may have, it has no power to reassess and reappreciate the evidence unless the statute expressly confers on it that power. That limitation is implicit in the concept of revision. In this view of the matter we are supported by a decision of this Court in State of Kerala vs. K.M. Charia Abdullah and Co. In the case on hand, against the conviction and sentence passed by the trial court, on the complaint preferred by the appellants, the respondent has filed an appeal and the same is pending, which is a prescribed course of action for enforcing a legal right. The said appeal is also a proceeding as contemplated under Section 279 (2) of the Act. For the discussions above, this Court is of the considered view that pending appeal, the appellants can very well compound the offence sought for by the respondent, which they failed. It is not out of context to mention that in earlier occasion, the appellants have allowed the application for compounding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out earlier Clause 4.4 commences with a non obstante Clause. Therefore, the competent authority is entitled to examine the merits of each matter and to take a decision as to whether the facts make out a case for compounding even in cases where there is a conviction by a Court of law. Thus the guidelines did not place any fetters on the power of the competent authority to examine cases for compounding. 8. The above decision rendered by this Court, was based upon the decision of the Hon'ble Division Bench of this Court, which is the jurisdictional High Court, so far as the respondents are concerned. The Hon'ble Supreme Court in the case of (M/s. East India Commercial Co. Ltd., and another Vs. Collector of Customs, Calcutta) reported in A.I.R. (1962) S.C. 1893, held that the law declared by the highest court in the State is binding on authorities, or tribunals under its superintendence, and that they cannot ignore it, either in initiating a proceeding or deciding on the rights involved in such a proceeding. Taking note of the scope of the guidelines, this Court was of the view that the competent Authority was entitled to examine the merits of each matter, and to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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