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TMI Blog2001 (3) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the rights of the two pictures was not disclosed and was assessable as its income and on October 28, 1987, the assessment was completed levying the tax of Rs. 33,360 for the said year. On March 30, 1989, a penalty of Rs. 60,000 was also imposed on the first petitioner. The Commissioner of Income-tax (Appeals) also confirmed the order of penalty on August 3, 1990. The petitioner firm preferred an appeal to the Commissioner of Income-tax under section 273A(4) of the Act and in the order dated March 23, 1994, the Commissioner of Income-tax, waived the penalties imposed on the firm for all the four years, i.e. 1982-86, under the provisions of the said Act. Hence, the petitioners cannot be proceeded against for the offence under sections 276C and 277 of the Act in view of the mandatory provisions of section 279(1A) of the Act. The respondent opposed the application and the learned judge after bearing, dismissed the application and aggrieved against this, the present revision has been filed. Heard learned counsel for the parties. The point that arises for consideration is whether the order passed by the court below is proper and correct Point : It is not in dispute t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e second accused had signed the return. It is not in dispute that the first accused firm also filed a revised return signed by the third accused along with a letter dated October 26, 1987. The revised return includes the amount received under two agreements, namely, Rs. 58,850. The revised assessment order has been passed and penalty proceedings were also initiated against the accused and summons was also issued to appear before PW-3. The statement given by her is marked as exhibit P-2 1. An order of penalty has been passed imposing a penalty of Rs. 60,000 upon the first accused firm and the order is exhibit P-23 ; PW-4, who was the Assistant Director, Intelligence, Madras, accompanied by another Assistant Director conducted a search of the premises of the first accused firm on December 17, 1983. This resulted in seizure of two agreements dated june 28, 1980, and February 11, 1981. The assessee should have declared this amount in their annual return filed for the assessment year 1982-83. PW-6, Assistant Director of Income-tax, submitted the file to the Commissioner of Income-tax for according sanction for prosecution. Through him the sanction accorded by the Commissioner of Income- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposing a penalty of Rs. 60,000 upon the first accused firm and the order is exhibit P-23 ; PW-4, who was the Assistant Director, Intelligence, Madras, accompanied by another Assistant Director conducted a search of the premises of the first accused firm on December 17, 1983. This resulted in seizure of two agreements dated june 28, 1980, and February 11, 1981. The assessee should have declared this amount in their annual.return filed for the assessment year 1982-83. PW-6, Assistant Director of Income-tax, submitted the file to the Commissioner of Income-tax for according sanction for prosecution. Through him the sanction accorded by the Commissioner of Income-tax was also marked as exhibit P-28 and thereafter only the complaint was filed on the basis of the sanction order. It is necessary to state that now the order relied upon by the accused was passed on March 23, 1994, under section 273A(4) of the Act. Now, the present application has been filed by the petitioners under section 245 of the Criminal Procedure Code, 1860, only in April 1997. As adverted to, after the conclusion of the evidence of PWs 1 to 6 and after examination of the accused under section 313 of the Criminal P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for the offence under the sections of the Income-tax Act and not clubbed with any provisions of the Indian Penal Code. There is also nothing to show that the escaped assessment was noticed and thereafter only the revised return was filed in that case. Under the circumstances, the facts in the present case and the case relied upon by the petitioners are completely different and as such the decision cannot be made applicable to the case on hand. Section 276C of the Act relates to wilful attempt to evade tax, etc. If a person wilfully attempts in any manner whatsoever to evade any tax, penalty or interest chargeable or imposable under this Act, he shall, without prejudice to any penalty that may be imposable on him under any other provision of this Act, be punishable. Section 277 of the Act relates to false statement in verification. If a person makes a statement in any verification under this Act or under any rule made thereunder, or delivers an account or statement which is false, and which he either knows or believes to be false, or does not believe to be true, he shall be punishable. Section 278B of the Act relates to offence by companies. Where an offence under this A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o to subsection (4) of section 273A and contended that the order relied upon by the petitioners cannot have any bearing. The proviso reads as follows : "Where the amount of any penalty payable under this Act or, where such application relates to more than one penalty, the aggregate amount of such penalties exceeds one hundred thousand rupees, no order reducing or waiving the amount or compounding any proceeding for its recovery under this sub-section shall be made by the Commissioner except with the previous approval of the Chief Commissioner or Director-General, as the case may be." As adverted to, after getting sanction from the competent authority to prosecute and the revised return was filed by the petitioners only after the search it cannot be said that the return was filed voluntarily and therefore by waiver of the penalty the prosecution has to be closed. Learned counsel for the revision petitioner also relied on M. R. Pratap v. V. M. Muthukrishnan, ITO [1977] 110 ITR 655 (Mad), wherein it is observed that the protection or immunity under section 279(1A) of the Income-tax Act, 1961, from prosecution under section 277 of the Act in a case where the penalty imposable o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elation to the assessment year in respect of which the penalty imposed or imposable on him under clause (iii) of sub-section (1) of section 271 has been reduced or waived by an order under section 273A. This section cannot come into play at all, unless and until, as a matter of fact, there is a reduction or waiver of penalty by an order emanating from the authority concerned under section 273A ... The expression "at the instance of the Commissioner" as used in the section means "with his sanction or on his authority". It does not require the complaint to be filed by the Commissioner himself. Section 26 of the General Clauses Act, 1897, lays down that, where an act or omission con stitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be, punished twice for the same offence." It is therefore clear from the aforesaid decisions and discussion that simply because an order has been passed by the authority waiving the penalty, the proceedings pending against the petitioner cannot be closed. Apart from that already the prosecution examined six witnesses and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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