ITO Vs Qamruddin (Allahabad High Court)
The Income Tax Officer filed the present criminal appeal against the judgment dated 28.04.1982 whereby the Chief Judicial Magistrate, Mirzapur, convicted the respondent under Section 277 of the Income Tax Act but released him under the Probation of Offenders Act. The prosecution arose from a complaint alleging that, in the return for Assessment Year 1968-69 filed on 26.10.1968, the firm had failed to disclose income of ₹1,15,470 received from M/s Damodar Das and others. During the proceedings, one of the partners died, and the case continued only against the surviving accused.
The accused admitted his guilt and stated that out of the disputed amount, ₹50,810 had been excluded pursuant to a High Court order, while tax and penalty had been paid on the remaining ₹61,460. The Income Tax Officer accepted these facts. The trial court also took into account that it was the accused’s first offence, his father’s death during the pendency of the proceedings, his admission of guilt, and his undertaking not to repeat such conduct, and consequently released him under the Probation of Offenders Act after recording conviction.
Before the High Court, the appellant contended that Section 292A of the Income Tax Act expressly bars the application of Section 360 Cr.P.C. and the Probation of Offenders Act to persons convicted under the Income Tax Act, unless the convicted person is below eighteen years of age. Reliance was placed on Union of India Vs. Mamta Sethi And Ors., wherein the Supreme Court held that Section 292A creates an express bar against granting probation for offences under the Income Tax Act and remitted the matter to the High Court for fresh consideration. The appellant also relied on Commissioner of Income-Tax Vs. Onkar Nath And Anr., where the Punjab and Haryana High Court observed that although probation should not have been granted in view of Section 292A, the sentence was not interfered with because of the long lapse of time and the peculiar facts of that case.
After considering the statutory provision and the cited precedents, the Allahabad High Court held that the trial court had failed to notice the express prohibition contained in Section 292A while releasing the respondent under the Probation of Offenders Act after convicting him under Section 277 of the Income Tax Act. The Court therefore set aside the order dated 28.04.1982 to that extent.
The High Court directed the trial court to reconsider the matter only on the question of sentence after providing both parties a reasonable opportunity of hearing and to pass a fresh order in accordance with the observations made by the Court.
Cases Discussed
- Union of India Vs. Mamta Sethi And Ors. (SC), AIR Online 2000 SC 587
- Commissioner of Income-Tax Vs. Onkar Nath And Anr. (Punjab & Haryana HC), (1985) 151 ITR 744 (P&H)
FULL TEXT OF THE JUDGMENT/ORDER OF ALLAHABAD HIGH COURT
1. Present criminal appeal has been filed against the judgment and order dated 28.04.1982 passed in Criminal Case No. 1649 of 1981 (State Vs. Qamaruddin Ansari and others), under Section 277 of the Income Tax Act, Police Station Katra, District Mirzapur, whereby the learned C.J.M, Mirzapur, whilst convicting the accused Qamaruddin Ansari under Section 277 of the Income Tax Act had released the convict under the provisions of Offenders Act.
Factual Matrix
2. Shorn of the details, a complaint filed under Section 277 of the Income Tax Act before the learned C.J.M, Mirzapur/concerned court against Qamaruddin Ansari and Azimullah Ansari partners of the firm M/S Mohammad Ibrahim Azimullah, Bhadohi, District Varanasi. It has been alleged in the said complaint that in the statement of Assessment Year 1968-1969, submitted on 26.10.1968, the firm has evaded the mincome of Rs. 1,15,470/- which they have received from M/S Damodar Das and others. On this issue after the enquiry conducted by the Income Tax Officer, the opposite party/accused filed another return in which they showed a different entry of Rs. 50,810/-, and left the rest as in the earlier statement. Thus, the Income Tax Officer after getting necessary approval from the competent authority, filed the instant complaint with the allegation that the opposite party had not shown the income of Rs. 1,15,470/- in their return submitted on 26.10.1968.
3. During the pendency of the case before the learned C.J.M, Mirzapur Azimullah Ansari died, therefore, the case has been filed only against the surviving, Qamaruddin Ansari.
4. Prior to the framing of charge against the opposite party, the statement of the then Inspector Income Tax namely D.C. Ganguly was recorded and on the basis of it the instant complaint was filed.
5. In the written statement filed by opposite party he has accepted his guilt and has further submitted that out of the whole amount which has been said to be not disclosed by him, Rs. 50,810/- has been deducted, as per the order of Hon’ble High Court and for the remaining amount of Rs. 61,460/-, he has deposited the income tax and the penalty. The opposite party/accused has further submitted that his father has died during the pendency of the case in question which has been accepted from the complainant’s side as it his first offence and on the undertaking that he would not be involved in any such activities in future, he should not be sent to jail.
6. The statement of the accused/opposite party referred herein above, that out of Rs. 1,15,470/-, Rs. 50,810/- has been exempted by the Hon’ble High Court has been accepted by the witness no. 1, the Income Tax Officer- D.C. Ganguly. It is proved by record that for the remaining amount (Rs. 61,460/-), the tax and the penalty has been deposited by the accused/opposite party and now the offence agasint the accused/opposite party has remained only technical.
5. Finding it to be a very old case and as the father of the accused/opposite party has died during the pendency of the case and on the basis of acceptance of the guilt by the accused/opposite party alongwith undertaking that he would not be involved in any such activity in future, the Presiding Officer of the concerned court, whilst passing the impugned order dated 28.04.1982, had convicted the accused/opposite party, under Section 277 of the Income Tax Act, but had released him under the provision of Probation of Offenders Act.
7. The impugned order dated 28.04.1982 passed against the accused/opposite party, is under challenge by way of instant criminal appeal, as mentioned above.
8. Though the notice has been duly served to the accused/opposite party but none had appeared on behalf of the accused/opposite party in the revised call, therefore, the case is being decided in absence of the accused/opposite party as ex-parte.
8. Heard Sri Abhsihek Shukla, learned Junior Standing Counsel appearing on behalf of the appellant (I.T.O).
9. At the very outset, the learned counsel for the appellant submitted that as per Section 292A of the Income Tax Act, 1961, the provisions of Section 360 Cr.P.C, 1973 and the Probation of Offenders Act, 1958, does not applies. For the sake of convenience, the provisions of law of Section 292A of Income Tax Act, is been reproduced herein below:-
“Section 292A:- Nothing contained in Section 360 of the Code of Criminal Procedure, 1973 (2 of 1974), or in the Probation of Offenders Act, 1958 (20 of 1958), shall apply to a person convicted of an offence under this Act, unless that person is under eighteen years of age”
Therefore, the impugned order dated 28.04.1982 passed by the court concerned, is liable to be set aside.
11. Learned counsel for the appellant has further relied on the case of Union of India Vs. Mamta Sethi And Ors., AIR Online 2000 SC 587, wherein the Hon’ble Supreme Court has held:-
“3. The respondents were convicted under Sections 276C and 277 of the Income-tax Act, 1961, but they were released under the Probation of Offenders Act. The appellant-Union challenged the said order before the High Court in a criminal appeal. But a learned single judge of the High Court dismissed the appeal with one sentence “I find no reason to interfere with the order of the trial court, hence, dismissed”.
4. The contention of the appellant-Union is that the trial court as well as the High Court missed to notice Section 292A of the Income-tax Act contemning an express bar against the invocation of the provisions of the Probation of Offenders Act in respect of the offence enumerated in the Income-tax Act. Prima facie, the said interdict is insurmountable but learned counsel for the respondents contended that they are able to convince the High Court that they are not liable to conviction at all under Section 276C or 277 of the Income-tax Act. It is open to the respondents to canvass for the said position in the appeal which the Union filed against them. Without prejudice to their right in raising such contention we set aside the impugned order and send the criminal appeal back to the High Court for disposal afresh according to law. This appeal is disposed of accordingly.”
11. Learned counsel for the appellant also relied on the case of Commissioner of Income-Tax Vs. Onkar Nath And Anr, (1985) 151 ITR 744 (P&H), wherein it is held:-
“It is true that under Section 292A of the I.T. Act, 1961, the benefit of probation cannot be allowed to a person who is convicted of an offence under the I.T. Act and who is above 18 years of age at the time of the commission of the offence. But Section 292A was inserted in the I.T. Act, 1961, by the Taxation Laws (Amendment) Act, 1975, with effect from October 1, 1975, while the offence in question was committed by the respondents prior to that in September, 1967 or July, 1968. It is also true that when the prosecution against the respondents was launched in the year 1980, the aforesaid Section 292A was in force and the conviction was recorded after the coming into force of that provision regardless of the assessment year involved. However, the assessment year involved was earlier to the coming into force of Section 292A of the I.T Act. Although, in my view, the benefit of probation should not have been given to the respondents by the appellate court in view of the aforesaid provision, since the matter pertained to the assessment year 1968-69 and the respondents have been given the benefit of probation, it would not advance the interests of justice, if at this stage, after lapse of so many years, the respondents are sentenced to imprisonment. The respondents are First offenders and the appellate court while giving them the benefit of probation has observed that “keeping in view the fact that the appellants have made a clean breast of their guilt before the trial court and had thrown themselves at its mercy, the ends of justice would be met if they are given the benefit of probation.” For the reasons recorded, this petition is dismissed.”
12. Having heard the learned counsel for the appellant and perusing the records available, at the first instance, looking to the provisions of law mentioned above and the case laws cited by the learned counsel for the appellant i.e. Union of India Vs. Mamta Sethi And Ors. and Commissioner of Income-Tax Vs. Onkar Nath And Anr (supra), this Court is of the considered view, that the respondent/opposite party was convicted under Section 277 of the Income Tax Act but was released under Probation of Offenders Act. The trial court missed to notice Section 292A of the Income Tax Act contemning an express bar against the invocation of the provisions of the Probation of Offenders Act in respect of the offence enumerated in the Income Tax Act, therefore, impugned order dated 28.04.1982, passed by the concerned court, is set aside.
13. Resultantly, the instant criminal appeal stands
14. The learned court concerned is hereby directed to reconsider the matter on the point of sentence only after giving reasonable opportunity of hearing to both the sides, and pass a fresh order, in the light of the observations, made herein above.
