TMI Blog2001 (12) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... , etc.-(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 seven years and with fine; (ii) in any other case, with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and with fine. (2) If a person wilfully attempts in any manner whatsoever to evade the payment of any tax, penalty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missible to impose penalty under section 271(1)(c) even after a prosecution under section 276C had been launched. Prosecution may not proceed only in cases where the penalty proceedings attain finality with a finding that there has been no concealment at all. For the purpose of levy of penalty under section 271(1)(c) the concealment need not be wilful. Mens rea is not an essential precondition for the imposition of penalty while it is an essential ingredient of the offence under section 276C. In the case of Gujarat Travancore Agency v. CIT [1989] 177 ITR 455, the apex court after noticing the difference in language between section 271(1)(a) and section 276C observed that: "There can be no dispute that having regard to the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclined to accept that submission and having further held that material documents on which the Assessing Officer had relied, and which had been perused by the Tribunal had not been taken note of and had not formed part of the evidence before the criminal court, the finding of the criminal court would not by itself be sufficient justification for setting aside the order of penalty. Learned counsel for the assessee submitted that the facts on the basis of which the prosecution was launched as also the facts on the basis of which penalty was levied by the Assessing Officer, were the same and that the criminal court's verdict must be accepted as having concluded the issue as to whether the assessee had or had not concealed the particulars of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced was not genuine. In the third of the cases, relied on, the apex court held that issue estoppel would arise in criminal proceedings, and evidence to establish an offence in respect of which the accused had been earlier tried and acquitted, could not be permitted when the same accused was being tried for a different offence but which required proof with regard to the offence for which he had been earlier tried and acquitted. That such rule of issue estoppel binds the criminal court was affirmed by the Constitution Bench in the case of Manipur Administration v. Thokchom Bira Singh, AIR 1965 SC 87. The penalty imposed under section 271(1)(c) of the Act is, as held by the Supreme Court, a civil liability. Wilful concealment is not an es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the facts on record that the business in respect of which the prosecution had been launched, belonged to the assessee. It was in that background that the court felt that allowing the prosecution to continue against an assessee who was found by the Tribunal to be not the owner of the business would be thoroughly unjust and quashed the prosecution. No question of issue estoppel arises here, the penalty under section 271(1)(c) having been levied before the prosecution was launched. The object of the two provisions, sections 271 and 276C, is different. While the object of the former is to emphasise the loss of revenue and provide for a remedy for such loss, the object of the latter is to punish the offender for having committed an econom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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