Offences and Prosecutions Under Chapter XXII of the (Indian) Income-Tax Act, 1961

Chapter XII of the Income Tax Act, 1961 (I.T. Act), which deals with the OFFENCES & PROSECUTIONS, is always a matter of concern for anyone concerned and related with the I.T. Act. It is quite perplexing to understand the defenses available to anyone prosecuted under the provisions of this chapter of the I.T. Act.

For understanding the nuances and implications of the Chapter XII of the I.T. Act, it is necessary to first of all to take note of abbreviations used hereinafter, and understand some legal terms.

• Cr.P.C. = The Code of Criminal Procedure, 1973.
• I.T. Act = Income Tax Act, 1961.
• RI = Rigorous Imprisonment.
• “Mens rea”[1] shall mean and include intention, motive, knowledge of a fact, belief, and reason to believe a fact.
  •  The onus of proof that there was no Mens rea, shall be on the accused.
• Company[2] shall mean and include,
  •  A Body Corporate;
  •  A Firm;
  •  An Association of Persons (whether incorporated or not);
  •  A Body of individuals (whether incorporated or not).
• Director shall mean and include[3],
  •  A Partner in the Firm;
    • Any member controlling the affairs of
      • any Association of Persons,
      • a Body of individuals.
• ‘Bailable Offence’ shall mean an offence which is made Bailable, and in case of such offence, bail can be claimed as a matter of right, which is subject to fulfilment of certain conditions like furnishing a bail bond, and surety, etc. to the satisfaction of the officer concerned.
• ‘Non-Bailable Offence’ shall mean an offence which is not a Bailable offence (all offences which are not made Bailable by any Statute), and in which bail cannot be claimed as a matter of right.
• ‘Cognizable Offence’ means an offence in which, a Police officer may arrest without any warrants or orders of the court.
• ‘Non-cognizable Offence’ means an offence in which a Police Officer has no authority to arrest without warrants.
• ‘Summons-Case’ means a case relating to an offence, or a case which is declared to be a Summons-Case, by any Statute.
• ‘Warrant-Case’ means a case relating to an offence, punishable with death, imprisonment for life, or imprisonment for a term exceeding 2 years.

It is important to note that since some of the above terms have not been defined under the I.T. Act, the meaning of the terms used above have to be taken from the Code of Criminal Procedure, 1973, as mandated under Sec. 280C of the I.T. Act.

JUDICIAL PRESUMPTION OF MENS REA IN CASE OF PROSECUTION UNDER CHAPTER XXII OF THE I.T. ACT 

It is utmost important to note that with respect to all the offences under Chapter XXII of the I.T. Act, a judicial presumption, under Sec. 278E of the I.T. Act, as to the culpable state of mind i.e. Mens rea, is raised against all accused in relation to all offences.

The onus of proof has been put on the accused to prove that the accused had no Mens rea which include intention, motive or knowledge of a fact or belief in, or reason to believe a fact, to commit any offences under the said Chapter.  

Absence of Mens rea can be taken as a defense and this is one of the strongest defense available for any prosecutions under this Chapter. Going by Sec.278E(2) of the I.T. Act, the presumption against the accused has to be judiciously raised only when the court believes that there are facts on record to establish guilt of the accused beyond reasonable doubt, and mere existence of a possibility of commission of an offence cannot be a ground for conviction.

While dealing with the aspect of Mens rea in relation to Sec.276C of the I.T. Act, the Supreme Court in the case of Gujarat Travancore Agency v. CIT[4], held that:

“There can be no dispute that having regard to the provisions of Sec. 276C, which speaks of wilful failure on the part of the defaulter and taking into consideration the nature of the penalty, which is punitive, no sentence can be imposed under that provision unless the element of mens rea is established.”

The above decision, in a way, is an explanation to Sec.278E of the I.T. Act, wherein it has been held that for offences under Sec. 276C(1), the prosecution has to establish the element of Mens rea. This is contrary to the plain language of Sec.278E of the I.T. Act.

Applying unequivocally Sec. 278E of the I.T. Act, which deals with the presumption as to culpable mental state in a prosecution of offence, for offenses committed under Sec.276CC of the I.T. Act, the Supreme Court in Sasi Enterprises Vs. Assistant Commissioner of Income Tax[5], held that in case of a prosecution of an offence, the Court has to presume the existence of mens rea and it is for the accused to prove the contrary and that too beyond reasonable doubt. Resultantly, the accused in a prosecution case has to prove the circumstances which prevented them from filing the returns as per Sec. 139(1) of the I.T. Act or in response to notices under Sec.s 142 and 148 of the I.T. Act.

DEFENSES IN CASE OF PROSECUTION UNDER CHAPTER XXII OF THE I.T. ACT

In case, a prosecution has been launched, the accused may defend the case:

• By compounding[6], [7];
• By pleading not guilty and facing trial;
• By discharging the onus of proof of absence of Mens rea for commission of the crime alleged;
• In a Warrant-case, by demonstrating at the state of framing of the charge by the court, that no case can be made out on the basis of the facts and documents available on record; or
• By filing a petition under Sec. 482 of the Cr.P.C. for quashing of the prosecution, provided merits of the case support such petition.

QUASHING PETITION UNDER SEC. 482 OF THE CR.P.C.

One of the most resorted to and sought after remedy in prosecutions under Chapter XXII of the I.T. Act, is filing of a quashing petition under Sec. 482 of the Cr.P.C.  However, one has to understand that for each and every case, quashing petition under Sec.482 of the Cr.C.P.C., may not be an effective remedy.

The general and consistent law is that the inherent power of the High Court under Sec. 482 of Cr.P.C. for quashing has to be exercised sparingly with circumspection and in the rarest of rare cases.

The Supreme Court in Som Mittal vs Govt. Of Karnataka[8], has held that the power under Sec. 482 Cr.P.C. must be exercised sparingly, with circumspection and in rarest of rare cases. Exercise of inherent power under Sec. 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal.

In the case of Central Bureau of Investigation v. Ravi Shankar Srivastava[9], the Supreme Court was of the opinion that, the High Court in exercise of its jurisdiction under Sec. 482 of the Code does not function either as a court of appeal or revision, and held and envisaged that three circumstances under which the inherent jurisdiction may be exercised, namely,

(i)        to give effect to an order under the Code,

(ii)      to prevent abuse of the process of the Court, and

(iii)    to otherwise secure the ends of justice.

The Supreme Court further held that while exercising powers under Sec. 482 of the Cr.P.C., the court does not function as a court of appeal or revision. Inherent jurisdiction under Sec. 482 of the Cr.P.C., though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in Sec. 482 of the Cr.P.C., itself. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of the court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

In another case, State of Haryana and others v. Ch. BhajanLal &Ors.[10], the Supreme Court laid down the categories of cases in which the High Court may, in exercise of powers under Sec. 226 of the Constitution of India or under Sec. 482 Cr.P.C., interfere in proceedings to prevent abuse of process of the Court or otherwise to secure the ends of justice.

a.      Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.

b.      Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Sec. 156(1) of the Code except under an order of a Magistrate within the purview of Sec. 155(2) of the Code.

c.       Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

d.      Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Sec. 155(2) of the Code.

e.       Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

f.       Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

g.      Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

It has been held by the Apex Court that “when the allegations made in the complaint even if taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused or where allegations made in the complaint and the evidence produced in support of the same do not disclose the commission of any offence and make out a case against the accused, it is open to the High Court in the exercise of extra ordinary inherent powers to quash the complaint or the FIR.”

In the case of Pepsi Foods Ltd. v. Special Judicial Magistrate[11], wherein it has been specifically held that though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless but that does not mean that the accused cannot approach the High Court under Sec. 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against them when no offence has been made out against them and still why must they undergo the agony of a criminal trial.

DIFFERENCE BETWEEN SUB-SEC. (1) AND SUB-SEC. (2) OF SEC. 276C OF THE I.T. ACT

The wording and language in both sub-Sec. (1) and sub-Sec. (2) of Sec. 276C of the I.T. Act appear to be identical except for two important differences.

The sub-Sec. (1) of Sec. 276C of the I.T. Act   deals with evasion of any tax, penalty or interest ‘chargeable or imposable’ under the Act.

The sub-Sec. (2) of Sec. 276C of the I.T. Act deals with the evasion of the ‘payment’ of any tax, penalty or interest under the Act.

Therefore, it would appear that the provisions of sub-Sec.(1) of Sec. 276C operate when any tax, penalty or interest is chargeable or imposable and the same is alleged to have been evaded. On the other hand, the provisions of Sec. 276C(2) would operate when the payment of tax, penalty, or interest is due and an attempt is made to evade the payment thereof[12] [13].

For being charged, under Sec. 276C(2) following three conditions are required to be fulfilled:

(i)        Wilful attempts in any manner,

(ii)      To evade the payment of any tax, penalty or interest under this Act, and

(iii)    The tax, penalty or interest that is assessed, imposed or charged as the case may be and not otherwise.

The Kerala High Court has held that “Sub-Sec. (1) and (2) of Sec. 276C of the I.T. Act, deal with two different situations. Sub-Sec. (1) deals with evasion of tax, penalty or interest CHARGEABLE OR IMPOSABLE under the Act. Therefore, evidently, WHAT IS CONTEMPLATED IS EVASION BEFORE CHARGING OR IMPOSING tax, penalty or interest. That may include wilful suppression in the returns before assessment and completion. But Sub-Sec. (2) DEALS WITH EVADING THE PAYMENT OF TAX, PENALTY OR INTEREST under the Act. The words CHARGEABLE OR IMPOSABLE ARE NOT THERE. What sub-Sec. (2) says is without prejudice to any penalty that may be imposable on him under any other provision of this Act, be punishable…… Therefore, evidently, Sub-Sec. (2) TAKES IN CASES OF TAX EVASION AFTER CHARGING OR IMPOSITION. Evasion after completion of assessment also comes within the operation of the sub-Sec.2[14].

FILING OF RETURN UNDER SEC. 276CC: WITHIN TIME – PROSECTION WRONG

In a revision petition against the proceedings under Sec. 276C(1) of the I.T. Act before the Andhra Pradesh High Court, it was held that where the respondents have yet to file a return, the prosecution is premature and the dismissal of the complaint is right. Thus, even before the act of attempt to evade is started, on a mere anticipation or contemplation that there may be a possibility of accruing liability after finalization of regular assessment proceedings, it cannot be said that the accused is liable for conviction under Sec. 276C(1) of the I.T. Act[15].

For the interpretation of Sec.276CC of the I.T. Act, in a criminal appeal titled Sasi Enterprises Vs. Assistant Commissioner of Income Tax[16], the Hon’ble Supreme Court Of India formulated the following questions as under:

(1)               Whether an Assessee has the liability/duty to file a return under Sec. 139(1) of the Act within the due date prescribed therein?

(2)               What is the effect of best judgment assessment under Sec. 144 of the Act and will it nullify the liability of the Assessee to file its return under Sec. 139(1) of the Act?

(3)               Whether non-filing of return under Sec. 139(1) of the Act, as well as non-compliance of the time prescribed under Sec.s 142 and 148 of the Act are grounds for invocation of the provisions of Sec. 276CC of the Act?

(4)               Whether the pendency of the appellate proceedings relating to assessment or non-attaining finality of the assessment proceedings is a bar in initiating prosecution proceedings under Sec. 276CC due to non-filing of returns?

(5)               What is the scope of Sec. 278E of the Act, and at what stage the presumption can be drawn by the Court?

While answering the above questions framed by it, the Supreme Court has held as under:

“Sec. 276CC applies to situations where an Assessee has failed to file a return of income as required under Sec. 139 of the Act or in response to notices issued to the Assessee under Sec. 142 or Sec. 148 of the Act.”

 The proviso to Sec. 276CC gives some relief to genuine assesses. The proviso to Sec. 276CC gives further time till the end of the assessment year to furnish return to avoid prosecution. In other words, even though the due date would be 31st August of the assessment year as per Sec. 139(1) of the Act, an Assessee gets further seven months’ time to complete and file the return and such a return though belated, may not attract prosecution of the Assessee. Similarly, the proviso in clause ii(b) to Sec. 276CC also provides that if the tax payable determined by regular assessment has reduced by advance tax paid and tax deducted at source does not exceed Rs. 3,000/-, such an Assessee shall not be prosecuted for not furnishing the return under Sec. 139(1) of the Act. Resultantly, the proviso under Sec. 276CC takes care of genuine assesses who either file the returns belatedly but within the end of the assessment year or those who have paid substantial amounts of their tax dues by pre-paid taxes, from the rigor of the prosecution under Sec. 276CC of the Act.

Sec. 276CC contemplates that an offence is committed on the non-filing of the return and it is totally unrelated to the pendency of assessment proceedings. The department may resort to best judgment assessment or otherwise to past years to determine the extent of the breach. The language of Sec. 276CC, is clear so also the legislative intention. It is trite law that as already held by the Supreme Court in B. Permanand v. Mohan Koikal   that “the language employed in a statute is the determinative factor of the legislative intent. It is well settled principle of law that a court cannot read anything into a statutory provision which is plain and unambiguous”. If it was the intention of the legislature to hold up the prosecution proceedings till the assessment proceedings are completed by way of appeal or otherwise the same would have been provided in Sec. 276CC itself. Therefore, it would be wrong to hold that no prosecution could be initiated till the culmination of assessment proceedings, especially in a case where the Appellant had not filed the return as per Sec. 139(1) of the Act or following the notices issued under Sec. 142 or Sec. 148 does not arise.

PENDENCY OF THE REASSESSMENT PROCEEDINGS: NO BAR TO THE THE CRIMINAL PROSECUTION ACT

[17]In a case, before the Supreme Court the question was, whether prosecutions under Sec. 276 and 277 of the I.T. Act and under Sec.s 193 and 196, Indian Penal Code, instituted by the Department while THE REASSESSMENT PROCEEDINGS under the Act are pending, are liable to be quashed on the ground that they were not maintainable. The Supreme Court, in the circumstances of that case held that:

“On a careful consideration of the relevant provisions of the Act, we are of the view that the PENDENCY OF THE REASSESSMENT PROCEEDINGS CANNOT ACT AS A BAR TO THE INSTITUTION OF THE CRIMINAL PROSECUTION for offences punishable under Sec. 276C or Sec. 277 of the Act. The institution of the criminal proceedings cannot in the circumstances also amount to an abuse of the process of the court.”

WHEN TO FILE APPLICATION FOR COMPOUNDING OF OFFENCE

Where application for compounding of offence was not moved by the petitioner-firm before the conviction order was passed by the criminal court. In such circumstances, there is no hesitation in holding that the application for compounding of offence was moved after the conviction order was passed by the Criminal court and, therefore, the question of compounding of offence, particularly when conviction and sentence against the present petitioners had already been passed by the Chief Judicial Magistrate, does not arise[18].

DISTINCTION BETWEEN SUMMONS-CASE AND A WARRANT-CASE

The first Schedule of the Cr.P.C. Part II, provides that if any offense is punishable with imprisonment for 3 years and upwards, but not more than 7 years, such offense shall be classified as a cognizable and a Non-Bailable offense.  In case an offense is punishable with imprisonment for less than 3 years or with fine only, such offense shall be non-cognizable and Bailable.  While classifying the offenses below, wherever there is no provision for any offense under the I.T. Act, the above Schedule has been referred,.

It is also necessary to understand the difference between the Summons-Case and a Warrant-Case and process of criminal trial relating to the same.

IN A SUMMONS-CASE,

• • When an accused appears or brought before the Magistrate,
  • The particulars of the offence are stated to him, and
  • The accused is asked whether he wish to plead guilty or has any defense to make[19]. 
    • On pleading guilty, the Magistrate may record the plea and convict the accused[20].
  • The court may or may not frame a formal charge.
  • If the accused does not plead guilty and claims trial, or if the Magistrate does not convict the accused,
    • The Magistrate proceed to hear the prosecution and take all such evidences as may be produced,
    •  And also hear the accused and take evidence as the accused may produce in his defense[21].
    •  After completion of the evidence on the part of both the parties, the Magistrate may acquit the accused or punish in accordance with the law, as the case may be.[22]

IN A WARRANT-CASE,

• • When an accused appears or not before the Magistrate,
  • The Magistrate proceed to hear the prosecution and take all such evidences as may be produced[23].
  • If upon taking evidence, the Magistrate considers that no case against the accused has been made out, the Magistrate shall discharge the accused.  The Magistrate can also discharge the accused provided the Magistrate considers that the charge is groundless[24].
  • If upon taking evidence or at any earlier stage, the Magistrate is of the opinion that the accused has committed an offence triable as a Warrant – Case, the Magistrate will frame the charge against the accused.  After framing of the charge, if the accused pleads guilty, the Magistrate will convict him, else the Magistrate will give an opportunity to the accused to cross-examine the witnesses, if any of the prosecution.  At this stage, the entire evidence of the prosecution will be recorded by the Magistrate[25].
  • After completion of the evidence, the accused will be allowed to enter defense and produce his evidence[26].
  • On the conclusion of the trial, the Magistrate will pass the judgment and acquit or convict the accused[27].

From the above, it can be observed that the trial in a summons – case, is carried out in a summary manner, whereas trial in a warrant case is elaborately done.  The differentiation in these 2 type of cases is based on the nature of the gravity of the offence.

COGNIZABLE/NON-COGNIZABLE AND BAILABLE / NON-BAILABLE, WHICH SHALL BE SUBJECT TO THE SPECIAL PROVISIONS OF THE I.T. ACT

Since the provisions of Cr.P.C., 1973 have been made applicable for conduct of trial for commission of offenses under Chapter XXII, it may be necessary to understand the methodology for classification of offenses as cognizable/non-cognizable and Bailable / Non-Bailable, which shall be subject to the special provisions of the I.T. Act.

In the Table below, the offences under Chapter XII of the I.T. Act, an attempt has been made to dissect various offences under the said Chapter, for easy understanding of the offences and the consequences. 

Footnotes :

[1] Sec.278E of the I.T.Act
[2] Sec.278B explanation (a) of the I.T.Act
[3] Sec.278B explanation (b) of the I.T.Act
[4][1989]177ITR455(SC)[5] [2014]222TAXMAN78(SC)[6] F.NO.285/35/2013 IT (INV.V)/108 dated 23-12-2014
[7] GUIDELINES FOR COMPOUNDING OF OFFENCES UNDER DIRECT TAX LAWS, 2014 – Circular – Dated 23-12-2014 – Income Tax
[8] AIR 2008 SC 1528
[9] 2006 Cri LJ 4050
[10] AIR 1992 SC 604
[11]  1998 Cri LJ 1
[12] [2001]118TAXMAN526(Guj)[13] [1995]213ITR307(Guj)[14] [1987]35TAXMAN66(Ker)[15] MANU/AP/0052/1989[16] [2014]222TAXMAN78(SC)[17] MANU/SC/0100/1984
[18]  [2009]183TAXMAN1(Punj & Har)[19] Sec. 251 of Cr.P.C.
[20] Sec. 253 of Cr.P.C.
[21] Sec. 254 of Cr.P.C.
[22] Sec. 255 of Cr.P.C.
[23] Sec. 244 of Cr.P.C.
[24] Sec. 245 of Cr.P.C.
[25] Sec. 246 of Cr.P.C.
[26] Sec. 247 of Cr.P.C.
[27] Sec. 248 of Cr.P.C.
[28] Sec. 280 B of the I.T. Act