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TMI Blog1993 (12) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... common judgment. So far as Miscellaneous Criminal Application No. 2125 of 1989 is concerned, it arises out of proceedings initiated in the Court of the Chief Metropolitan Magistrate at Ahmedabad, vide Criminal Case No. 339 of 1986 by Shri M. C. Katharin, respondent No. 2, herein. It is alleged in the complaint that for the assessment year 1981-82, the petitioner accused was required to file his return of income by June 30, 1981, and was required to make payment of advance tax in three instalments as provided in section 209 of the Income-tax Act, 1961 (hereinafter referred to as "the Act"). It is averred in the complaint that as the petitioner-accused failed to file return as per section 139(1) of the Act, notice dated August 29, 1981, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id; and there is no provision for prosecution in a case like this where there is nothing to show that the petitioner wilfully attempted in any manner whatsoever to evade payment of any tax, penalty or interest chargeable or imposable under the Act. Section 276C reads as under: " 276C. (1) 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,-- (i) in a case where the amount sought to be evaded exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to sev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of any tax. Mr. Soparkar submitted that there must be allegation that by way of some device the petitioner evaded to pay the tax or played any tricks or there was any underhand dealing, etc. Relying upon a decision of the Privy Council in the case of Simms v. Registrar of Probates [1900] AC 323, Mr. Soparkar submitted that there must be intention to evade the payment of tax. There was the Succession Act of 1876 which has been superseded by the Succession Duties Act on receiving Royal Assent on October 25, 1893, and that statute imposed much heavier rates of duty amounting for an estate so large as that of the testator to an increase of eight per cent. The appellant in that case was entitled under a will of William Knox Simms who die ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... word is capable of being used in two senses: one which suggests underhand dealing, and another which means nothing more than the intentional avoidance of something disagreeable. " Considering the meaning of the words "to evade", Mr. Soparkar submitted that there is nothing in the complaint from which one can even think that the accused did anything to evade the payment of any tax. There must be positive averments in the complaint and reading the complaint it is not possible to say that the petitioner acted in such a way as to evade the payment of any tax that was determined under the provisions of the Act. Looking to the language of section 276C, according to Mr. Soparkar, the tax amount must have been determined. Sub-section (2) of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed period the petitioner filed the return disclosing his income and paid the tax, i.e., after finalisation of assessment he paid the tax that was determined. What sub-section (2) of section 276C requires is three things: (1) wilful attempts in any manner, (2) to evade the payment of any tax, penalty or interest under this Act, and (3) the tax, penalty or interest that is assessed, imposed or charged as the case may be and not otherwise. If one reads the complaint, it is very clear that on determining the amount of tax the petitioner has paid the tax. Mr. Soparkar, relied on a decision of the Supreme Court in the case of Gujarat Travancore Agency v. CIT [1989] 177 ITR 455, 457, wherein the court has observed: " There can be no dispute that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t clearly appears that, as the words "chargeable" or "imposable" being absent in sub-section (2), the clear meaning could be payment of any tax, penalty or interest and that too, which is determined. Therefore, sub-section (1) contemplates evasion before charging or imposing tax, penalty or interest. Reading sub-section (2) it becomes very clear that it refers to the cases of tax evasion after charging or imposition, that is evasion after completion of assessment comes within the purview of the sub-section. As observed by the Kerala High Court in G. Viswanathan's case [1987] 167 ITR 103, sub-section (2) is so clear that at any rate it takes in the cases of evasion of tax, penalty or interest after assessments were made. Therefore, in view o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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