TaxTMI 
TaxTMI 
2000 (9) TMI 18
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.... partner in the firm which is the petitioner in Criminal Miscellaneous Applications Nos. 965 to 967 of 1992. The petitioner in Criminal Miscellaneous Applications Nos. 962 to 964 of 1992, is also a partner in the same firm as the first mentioned petitioner. Thus, the two partners and the partnership firm have approached this court with a prayer to quash the complaints and the criminal proceedings in the various pending criminal cases initiated by the Inspecting Assistant Commissioner of Income-tax, Ahmedabad. The offences alleged against the petitioners are one or more or all of the offences defined or made punishable under sections 276C(1), 276C(2), 276CC and 277 of the Income-tax Act, 1961 (the 'Act"). The offences alleged against the ....
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....tement made in the verification, etc. Addressing the arguments common to all these cases, learned counsel for the petitioners has submitted that the lapses on the part of the petitioners are of technical nature and the complainant has singled out the petitioners for prosecution. It is also submitted that, even assuming the allegations against the petitioner to be true, there is no element of mens rea which can be attributed to the petitioners particularly in view of the facts that the petitioners have paid up all the amounts, interest charged and the penalty imposed. As against these submissions, Mr. Naik, appearing for the Department, has submitted that the allegation that the petitioners are singled out for criminal prosecution is base....
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....ty that may be imposable on him under any other provision of this Act, be punishable with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and shall, in the discretion of the court, also be liable to fine. Explanation. -For the purposes of this section, a wilful attempt to evade any tax, penalty or interest chargeable or imposable under this Act or the payment thereof shall include a case, where any person- (i) has in his possession or control any books of account or other documents (being books of account or other documents relevant to any proceeding under this Act) containing a false entry or statement; or (ii) makes or causes to be made any false entry or statement in....
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....re made. The aforesaid judgment of the Kerala High Court is relied on for the further proposition that section 276C(2) deals with evasion of tax after quantification and becomes applicable only after the income is assessed and the assessee attempts to evade payment. The wording and language in both sub-section (1) and sub-section (2) of section 276C of the Act appear to be identical except for two important differences. While sub-section (1) deals with evasion of any tax, penalty or interest "chargeable or imposable" under the Act, sub-section (2) deals with the evasion of the "payment" of any tax, penalty or interest under the Act. The Explanation given below the section makes it clear that two sets of penal provisions are sought to be ....
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....nd that the petitioners have averred that there was no element of mens rea in their alleged defaults or that in hundreds of similar cases the Department was desisting from filing criminal complaints. It is pointed out on behalf of the petitioner-firm in Criminal Miscellaneous Applications Nos. 965 to 967 of 1992 that these cases involve only the offence under section 276C(2) and even the order of penalty in respect of the assessment year 1982-83 was cancelled by the Department itself. Otherwise, factually, the default alleged against the petitioner in these three matters is non-payment of advance tax only. In the facts and circumstances as above, Criminal Miscellaneous Applications Nos. 965, 966 and 967 of 1992 are allowed and the Cri....