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TMI Blog1999 (11) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... ment issued a notice under section 142(1) of the Income-tax Act. In spite of it, the accused failed to comply with the same. For the assessment years 1992-93 and 1993-94, the accused failed to submit his return of income on or before June 30, 1992, and June 30, 1993. respectively. Hence, notice under section 148 was issued calling upon him to file his returns of income within 30 days from the date of receipt of the notices. As the accused did not file the returns as required, notice under section 142(1) of the Income-tax Act was served upon the accused. He sent a reply on December 9, 1994, stating that his main source of income was salary on which tax was deducted, that he had to travel in the performance of his official duties, and that on account of the search effected, some of the records were dislocated and hence the delay. The returns were filed on December 9, 1994, by the accused showing an income of Rs. 1,14,690. A return of income was filed on the same day for the year 1992-93, showing an income of Rs. 1,24,560 along with a statement of total income showing income under the head "Salary" as Rs. 1,26,859. For the assessment year 1993-94, on the same day, a statement was file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Egmore, and as confirmed by the Principal Sessions Judge, City Civil Court, Madras, is liable to be interfered with ?" The point : The petitioner would contend that the conditions necessary to invoke section 276CC are singularly absent in this case. According to him, there must be a statutory and punishable delay. The delay must be wilful. There must be evasion of tax by the assessee. The exemption indicated in the proviso has to be scrupulously adhered to by the officers of the Income-tax Department. Hence, he would submit that the Department has failed to prove that there has been a wilful and punishable delay within the meaning of section 276CC of the Income-tax Act. It is further submitted by the petitioner that the Department has issued certain guidelines and those guidelines are binding upon the Income-tax Officer. The circular containing such guidelines are executive in character and concessional in nature. The Income-tax Officer concerned failed to implement the circular and, hence, the prosecution is not maintainable. It is also submitted by the petitioner that the income-tax authorities have not exhausted the statutory facilities before resorting to prosecution. He wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to the delay in filing of the returns for the years 1991-92, 1992-93 and 1993-94. There are three separate orders sanctioning prosecution, relatable to the three assessment years 1991-92, 1992-93 and 1993-94, respectively. Of course, even that complaint relating to 1991-92 has not been marked in this case. Section 276CC of the Income-tax Act, as extracted above makes the failure to furnish in due time the return of income by a person, who is required to furnish under section 139 or by a notice given under clause (i) of sub-section (1) of section 142 or section 148, punishable in cases where the amount of tax which would have been evaded, if the failure had not been discovered, exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine ; and in any other case, it shall not be less than three months, but which may extend to three years and with fine. Therefore, the failure to furnish the return of income in due time, is made punishable under section 276CC. Thus, it is a distinct offence. The apex court has held that the word "distinct" means not identical. The word "distinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itute, the accused may be charged with having committed all or any such offence, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some of the said offences. Section 222 of the Criminal Procedure Code provides that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. Section 223 of the Criminal Procedure Code sets out conditions, where persons may be charged and tried together. Thus, section 218 of the Criminal Procedure Code clearly lays down that for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately. I have referred to the other sections with a view to emphasise upon the scheme and object of section 218 of the Criminal Procedure Code. This section applies not only to warrant cases, but also to summons cases, though it is not necessary to frame charge in summons cases. The apex cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t trial. Nor is there any order to the effect, passed by the magistrate holding that he is of the opinion that the accused is not likely to be prejudiced by joint trial. The three offences were distinct and different and not related to each other and not committed within a space of 12 months from the first offence to the last offence, and therefore, there cannot be joint trial also. The object of section 218 of the Criminal Procedure Code is to save the accused from embarrassment and avoid prejudice to the accused. Therefore, it is essential under section 218 of the Criminal Procedure Code that there must be specific and distinct charge in respect of every distinct head as the criminal liability constituting an offence, is the foundation for a conviction and sentence therefor. It is to be pointed out that separate trial indicates that the evidence recorded in one trial cannot be used in the other. This is not a case, which would fall under any of the exceptional provisions of the Criminal Procedure Code. The apex court has held in the decision reported in Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956 SC 116 ; [1955] 2 SCR 1140 that a joinder of charges would not v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the request emanated from the accused. Even assuming that there can be a single trial, it does not follow that there can be a single judgment. On the other hand, the judgment must be common, stating so clearly or there must be necessarily conviction in each case with separate sentence though the discussion is common. That the magistrate intended to dispose of and did dispose of only C. C. No. 73 of 1995, is further evident from the fact that though the complaint relates to 1992-93 and 1993-94, the complaints are not found among the records submitted to this court, in connection with the revision. Further, the charge reads the failure to furnish in due time for all the three years put together as a single offence and therefore framed only a single charge without mentioning the counts. Therefore, it is clear that the court was trying only one offence and one C. C. only. While so, how can it pass a sentence on these counts and in three cases without recording a finding of guilt and conviction in all the cases separately. It is to be pointed out that though a single trial can be held, there must be distinct and separate charges, for each accounting year or assessment year. I have al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree complaints were taken on file and numbered as C. C. Nos. 71 of 1995, 72 of 1995 and 73 of 1995. The judgment is rendered only in C. C. No. 73 of 1995. There is no separate finding or conviction with reference to C. C. Nos. 71 of 1995 and 72 of 1995. The preamble of the judgment simply states as follows : "E. O. C. C. No. 73 of 1995. (E. O. C. C. Nos. 71 and 72 of 1995 clubbed with E. O. C. C. No. 73 of 1995)". In the cause-title, in the array of E. O. C. C. Nos. 71 of 1995 and 72 of 1995 are not mentioned. The operative portion of the judgment also does not make mention of E. O. C. C. Nos. 71 of 1995 and 72 of 1995. There was also no separate questioning of the accused in C. C. No. 71 of 1995 and C. C. No. 72 of 1995 with regard to sentence. The concluding paragraph of the judgment runs thus : "Hence, for the reasons stated above, the accused is found guilty under section 276CC (three counts) of the Income-tax Act. The accused was asked under section 248(2) of the Criminal Procedure Code to state in respect of the sentence that would be passed against him. The accused has stated that he has nothing to say. Hence, considering the tax amount for the said assessment years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out that the complaints are not marked. The complaints are in the nature of F. I. R. on the basis of which the penal proceedings are set in motion against the accused. For, it is only on the complaint, the endorsement of cognizance and further steps as to issue of proceedings is made. Not only that, in the records of the lower court the complaint relating to 1991-92 alone is found. The other complaints relating to 1992-93 and 1993-94 are not found. Therefore, there is nothing to show that there were two other complaints and that they were taken on file and further proceeding was ordered. When it is so, how any conviction can be made for the alleged offences for the years 1992-93 and 1993-94. It is to be pointed out that as a result of this, if it is to be taken that this is a common judgment rendered in all these three C. Cs. finding the accused guilty in each of the C. Cs., then the position is that there is no separate judgment or finding in C. C. Nos. 71 and 72 of 1995. Nor is there any complaint relating to those years, which can be challenged by the accused. In other words, the accused is placed in such a position that he is unable to prefer any appeal against C. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no loss caused to the State. Nor is there any ultimate evasion of tax as such. It is only stated that there is a failure to furnish the return of income in due time which is thus technical in nature. When we are ignoring the fact of acceptance of returns and remittance of tax and rely upon the failure to submit the return in time, which is purely a technical default, equally, the benefit of the mistakes committed in the procedure which is in a way technical in nature should go to the accused. Therefore, in that view of the matter, I am constrained to hold that for the reasons stated above, as the framing of the charge is defective and violative of sections 218 and 219 of the Criminal Procedure Code and as the judgment has been rendered only in a single case and there is no finding of guilt recorded as regards the two other cases as there is no charge of more than one count relating to the complaint in C. C. No. 73 of 1995, the error committed by the trial court is of such grave nature that it has caused prejudice to the accused and, therefore, in that view of the matter, I have to hold that the conviction and sentence passed by the lower court has to be set aside. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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