TMI Blog2015 (11) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... simultaneous and once penalties are cancelled on that ground there is no concealment, the prosecution for concealment is liable to be quashed automatically and thereby held the prosecution will not survive and is liable to be quashed thereby the High Court held committed an error. Here, it is not the case of the accused/petitioner that penalty proceedings are quashed or set aside and thereby automatically the prosecution is liable to be quashed. It is not even his case that even there is any finding by any Tribunal of no willful default on the part of him despite presumption against him with a burden on him under reverse onus clause to say consequently that finding is binding on the criminal Court with the analogy of law laid down in R.K. Builders (2004 (1) TMI 7 - SUPREME Court)to quash the prosecution thereby the decision relied has no application for the factual matrix referred (supra). In fact, it is though not mentioned in the original quash petition about the trial Court's order, after hearing both sides as a private warrant procedure framed charges against the accused and the accused was examined, in the course of hearing it is filed as additional material. On perusal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 90-A on account of tax paid in any specified territory outside India and any tax claimed to be set off as per Section 115 JA or ID;, the assessee shall be liable to pay such tax together with interest payable under the provisions of the Act, for any delay in furnishing return or any default or delay in payment of advance tax, before furnishing return and the return shall be accompanied by proof of payment of such tax and interest. As per the Explanation II of Section 141-A(i), where the amount paid by the assessee under the sub-section falls short of the aggregate of the tax interest as aforesaid, the amount so paid shall be first adjusted towards the interest payable and the balance towards the tax payable. As per the sub-section 2 of 141-A after regular assessment under Sections 115 (wf) or 143 or 144 or 153-A or 158-B, 158-C, has been made, any amount paid under Sub-section 1 supra, shall be deemed to have been paid towards said regular(recurring) assessment or assessment as the case may be. As per sub-Section 3 of Section 141-A if the assessee fails to pay the whole or any part of such tax or interest or both in accordance with the sub-Section-1 supra, he shall without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment and his statement in this regard was he received but undisputedly utilized for business expenditure with intent to pay the tax after receiving the balance dues from the Government. In fact, Section 140(A) of the Act referred supra no way enables to delay or postpone the payment but for to pay whatever payable while furnishing return if not paid before as advance tax. It is therefrom the complaint is maintained with the permission obtained supra for the offence under Section 276(C)(2) of the Act saying the tax due but for more than a year without any valid reasons even received substantial amounts for the contract works done. In the complaint it is averred from para-10 onwards pursuant to the above that the assessee, having received more than 14.25crores for the works done though shown or claimed some balance still due for the works done, he has shown profit of 2,10,26,628/- for the assessment year-2012-13 (financial year 2011-12) he should have planned to pay the advance tax which he did not and at least with the return of self-assessment that not even paid though required to be as per Section 140(A) of the Act and the non-payment even after issuance of notice under Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench. 7. Section 221 speaks of penalty payable when tax is in default or deemed to be in default by the assessee, in addition to the amount of arrears and interest however the penalty shall not exceed the amount of tax in arrears and before levying any such penalty, assessee shall be given a reasonable opportunity of being heard to show if the default was for the good and sufficient reasons, in such a case, no penalty shall be levied. Once show cause notice issued even before levy of penalty tax paid that will not absolve liability for penalty to be imposed. Thus, Section 221 only speaks of penalty but not prosecution. Section 220 of the Act deals with any amount other than advance tax specified payable in the notice of demand under Section 156 shall be paid within 30 days of service of notice at the place and to the person mentioned therein. If the amount specified in the notice of demand under Section 156 of the Act not paid within the period of 30 days supra, the assessee shall be liable to pay 1%p.a. interest. It is now to be seen in support of the contention of the accused as to any notice contemplated by Section 156 is required to be given before launching prosecution. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the assessee or arrest of assessee and his detention in prison or by appointing a receiver by management of the properties of the asseessee for realization. What section 226 says is whether any such certificate is drawn under Section 222 of the Act supra, the Assessing Officer may recover the tax by any of the modes provided viz. where certificate drawn under Section 222, without prejudice to the other modes of recovery under Section 222, the Recovering Officer may recover any one or other modes if the assessee is in receipt of any chargeable under the Head of salaries may require person paying sum to deduct from the payment subject to exemption under Section 60 of the Code of Civil Procedure and where money is due to the asseessee requiring person who falls due to pay and recover or otherwise applied to the Court in whose custody money belongs to the assessee for payment out of the same or otherwise if authorized by any order of recovery as arrears of tax due by distraining and sale of immovable property as laid down in III schedule. In fact, it is not a bar to the prosecution from the other modes of recovery available for the tax or interest or penalty it is for the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision of without prejudice to any penalty that to be imposable, the prosecution when sustainable, the modes of recovery is to the tax, interest and penalty for the non-payment that is not the only recourse for nothing to say without exhausting, prosecution won't survive. The only point is left to be answered from the contentions raised by the learned counsel for the quash-petitioner/accused is whether there is any willful non-payment on the part of the petitioner/accused. No doubt in his replies particularly one dated 21.02.2014 for the notice issued under Section 221(1) read with 220 and the other dated 24.03.2014 for the show cause notice issued before initiation of the prosecution under Section 276 () of the Act is not to initiate action and that he would make payment as and when he receives contract bills. As discussed supra, out of the works done by him for the assessment year 2012-13(financial year 2011-12) of more than 14.25crores received out of the total works the value even not before the Court and shown of it a profit of ₹ 2,10,260.628 for which the tax payable of ₹ 68,28,133/- and the TDS deduction only of ₹ 10,12,293/- on his own showing by 30. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enable them to move necessary petition and file copy of the order of the Tribunal dated 24.10.1996 which allowed the appeals preferred by the A.1 against levying of penalty and the learned Magistrate permitted to mark the order of the tribunal in evidence at the appropriate stage of trial from no objection of prosecution. Giving effect to the order in ITAT's order in ITA Nos.3129-3132, the penalties levied under Section 271(1) of the Act, were cancelled by the Department. In the meantime the Revenue Department filed application under Section 256(1) of the Act for reference of the question of law which had arisen from the order of the ITAT and the same was rejected. Thereupon, the appellant-assessee preferred a Criminal Revision before the Hon'ble High Court for setting aside the order of the Additional Chief Metropolitan Magistrate dated 21.071997 and the single judge of the Madras High Court rejected said Revision holding that the order of the ITAT was not applicable as not marked as defence document whereas the fact remains that order was passed at a subsequent date. The High Court referring to the expression of the Apex Court in K.T.M.S. Mohammed v. Union of India (199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld committed an error. 14. Here, it is not the case of the accused/petitioner that penalty proceedings are quashed or set aside and thereby automatically the prosecution is liable to be quashed. It is not even his case that even there is any finding by any Tribunal of no willful default on the part of him despite presumption against him with a burden on him under reverse onus clause to say consequently that finding is binding on the criminal Court with the analogy of law laid down in R.K. Builders (supra) para-26 to quash the prosecution thereby the decision relied has no application for the factual matrix referred (supra). 15. In fact, it is though not mentioned in the original quash petition about the trial Court's order, after hearing both sides as a private warrant procedure framed charges against the accused and the accused was examined, in the course of hearing it is filed as additional material. On perusal of the charges framed by the trial Court also it nowhere requires any interference from what is referred supra. 16. Having regard to the above there are no grounds to quash the prosecution proceedings in C.C.No.103 of 2014 on the file of the learned Special J ..... 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