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TMI Blog2009 (1) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... me Tax Act, 1961, (hereinafter referred to as the Act, for short). In support of the said charge, it was alleged that the 1 st accused is a company incorporated under the Companies Act, represented by its managing director-2 nd accused. He was responsible for the conduct of business of the 1st accused and all financial matters of the company. b) On 28.8.1997, a survey was conducted under Section 133-A of the Act in the premises of the 1 st accused and books of account were verified. It revealed accused had deducted tax at source in a sum of Rs. 16,17,460/- during the financial year 1996-97 and did not remit tax to the Central Government account, necessitating issuance of show-cause notice on 28.8.1997. c) The 2 nd accused, representing the company, submitted an explanation and assertively contended that it cannot be declared as a 'defaulter'. However, on the basis of material available and as in subsequent action accused admitted commission of the offence, it was treated as a 'defaulter'. It was directed to pay interest in a sum of Rs. 1,81,051/- which was also not complied. The Department also noticed commission of similar offence during the financial year 1994-95 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus: 377. Appeal by the State Government against sentence: (1) Save as otherwise provided in sub-section (2), the State Government may, in any case of conviction on a trial held by any court other than a High Court, direct the public prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy- a) to the Court of Session if the sentence is passed by the magistrate; and b) to the High Court, if the sentence is passed by any other court 2. If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under Delhi Special Police Establishment Act, 1946, (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the public prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. (3) When an appeal has been filed against the sentence on the ground of its inadequacy, the court of sessions or as the case may be, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritorial jurisdiction of the special courts may be the whole State. The suggestion of the Government of India was examined in consultation with the High Court of Karnataka, Bangalore. The High Court of Karnataka suggested that a special court may be established for Bangalore District including the metropolitan area of the city of Bangalore. The High Court of Karnataka is of the view that conferring state wide jurisdiction to the Special Court would involve time, expenditure and serious inconvenience to the accused, witnesses, defence counsel, etc. The High Court is also of the view that the question of establishing similar courts in divisional head quarters could be considered later after observing the functioning of the proposed court at Bangalore. Accordingly, the Registrar, High Court of Karnataka has forwarded proposals for the creation of a Special Court at Bangalore for trial of economic offences under certain Central Acts presided over by an officer of the rank of a civil judge and Chief Judicial Magistrate together with certain non-gazetted staff in accordance with the uniform staffing pattern to be attached to the court for a period of one year in the first instance. The o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red with the power of filing appeal by virtue of Instruction No. 1775. 12. In Instruction No. 1775, 'the relevant portion reads thus: TECHNICAL ADMINISTRATION 1. .. 2. .. 3. Administrative approval for launching of prosecution against tax delinquents and supervision over the work relating to prosecutions. 4. In accordance with the guidelines laid down by the Board, from time to time, granting of approval in respect of: a) Filing of reference applications to the High Court u/s 256(2). b) Accepting or contesting any adverse order of the High Court; c) Contesting before the High Court or the Supreme Court, adverse orders of the Settlement Commission or the Appellate tribunal for Forfeited Property. With reference to it, learned counsel for the appellant submits issuance of direction by such officer to file an appeal meets the requirement of sub-section (2) of Section 377, Cr.P.C. 13. Learned counsel for the respondents, in this regard, has gained citational support to his contention that it is the Central Government only and not any officer of the Department who is competent to issue such direction. They are: 1) G.KUPPUSWAMY NAIDU MEMORIAL SPORTS TRUST v. COMMISSIONER OF INCOME TA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to above and the fact situation, I am constrained to hold that in the absence of any specific notification authorising the Chief Commissioner or any other officer of the I.T. Department to exercise power conferred by sub-section (2) of Section 377, Cr.P.C. on the Central Government, any authorisation issued by virtue of exercise of power under Schedule-Il of Instruction 1775 cannot be equated to exercise of power under sub-section (2) of Section 377, Cr.P.C. Since the provision clearly mandates issuance of authorisation to prefer an appeal only by the Central Government, only it is competent. In the absence of such authorisation, the officer cannot be said to be authorised by the Central Government to present the appeal to the High Court. Hence, appeal action before the High Court as in this case would not be tenable. 16. This technical infirmity touches only maintainability and therefore, without expressing arty opinion on merits, I am constrained to hold that the appeal as presented on the authorisation by the Chief Commissioner is not competent in the absence of authorisation by the Central Government to file such appeal 17. At this stage, learned counsel, Sri Jeevan re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... need reference. The appeal was by the accused assailing the judgment of conviction, and the State was also before the High Court seeking enhancement of sentence. Both the appeal and revision came up for consideration before the High Court and the High Court noticed that the sentence imposed was wholly inadequate. The High Court suo moto exercised its revisional power under Section 401, Cr.p.C. and enhanced the sentence. That order was questioned in the apex court and the apex court, taking note of the circumstances of that case, observed thus. Section 401 expressly reserves power to the High Court, by itself, to call for records without intervention of any other agency and had kept alive the ancient exercise of power when something extraordinary comes to the knowledge of the High Court. The provisions of Section 401 read with 386(c)(iii) are clearly supplemental to those under Section 377, Cr.P.C. whereby appeals are provided against inadequacy of sentence at the instance of the State or Central Government as the case may be. There is, therefore, no merit in the contention of the learned counsel that the Tahsildar acted without jurisdiction in exercise of power of revision suo mot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard, we have to examine the scheme of the Act relating to the offence punishable under Section 276B and 278-B of the Act. 24. Section 276B is of relevance. it reads thus: 276-B: Failue to pay tax to the credit of Central Government under Chapter XII-D or XVII-B: If a person fails to pay to the credit of the Central Government- a) the tax deducted at source by him as required by or under the provisions of Chapter XVII-B; or b) the tax payable by him, as required by or under- i) sub section (2) of Section 115-0; or ii) the second proviso to Sec. 194-B, he shall be punishable with rigorous imprisonment for a term which shall not be less than three months but which may extend to seven years and with fine.' In the instant case, accused is a company and therefore, the provision of Section 278-B has been invoked. However, it is relevant to note that even if the offence is committed under the Act establishing contravention of the provision of Section 276A, 276AB or 276B, no person shall be punishable for any failure referred to in the said provision if he proves that there was reasonable cause for such failure. Section 278-AA reads thus: 278-AA: Punishment to be imposed in certain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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