TMI Blog1999 (7) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... ecember 7, 1995, under section 133A of the Act. Notice under section 148 was issued on December 15, 1995. Notices dated February 14, 1996, and March 1, 1996, were issued as to why the prosecution proceedings should not be launched against the petitioners for not filing the returns in time. The Commissioner of Income-tax not satisfied with the reply, authorised the Assistant Commissioner of Income-tax to file a complaint under sections 276C(1) and 276CC of the Act. Interest under sections 234A, 234B and 234C has been levied by the assessing authority. It is stated that, since the returns were accepted under section 143(1)(a) of the Act, vide assessment order dated March 29, 1996, subsequently, the assessment order under section 143(1) read w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xceeds 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 imprisonment for a term which shall not be less than three months but which may extend to three years and with fine : Provided that a person shall not be proceeded against under this section for failure to furnish in due time the return of income under sub-section (1) of section 139-- (i) for any assessment year commencing prior to the 1st day of April, 1975 ; or (ii) for any assessment year commencing on or after the 1st day of April, 1975, if (a) the return is furnished by him before the expiry of the assessment year ; or (b) the tax pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , is obliterated or otherwise eclipsed, the moment an assessee is subjected to interest. The provisions of sections 276C(1) and 276CC are not overriding the provision for interest as contained in sections 139(8), 217, 234A, 234B and 234C. In a taxation matter, the interpretation favourable to the assessee has to be taken as held in C.W.S. (India) Ltd. v. CIT [1994] 208 ITR 649 (SC). Under article 21, a citizen has a right to live with human dignity as held in P. Rathinam v. Union of India, AIR 1994 SC 1844, and, as such, the provision for prosecution cannot be allowed to remain on the statute book. It is a naked arbitrary power which is unfettered, unguided and uncontrolled and hit by article 14 of the Constitution as observed in Pannalal B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of tax or submission of return by making the payment of interest and whether it amounts to a total punishment prohibited under article 21 of the Constitution of India ? (ii) Whether it was necessary for the Commissioner of Income-tax to pass orders only after instructions or directions were issued by the Chief Commissioner for institution of proceedings for prosecution ? Article 21 of the Constitution provides that, no person shall be deprived of his life or his personal liberty except according to the procedure established by law. Under article 20(2) of the Constitution, no person can be prosecuted and punished for the same offence more than once. In Shiv Dutt Rai Fateh Chand v. Union of India [1984] 148 ITR 664 ; [1983] 53 STC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In article 20(1) the expression 'penalty' is used in the narrow sense as meaning a payment which has to be made or a deprivation of liberty which has to be suffered as a consequence of a finding that the person accused of a crime is guilty of the charge." It was further observed that: "...that the word 'penalty' used in article 20(1) cannot be construed as including a 'penalty' levied under the sales tax laws by the departmental authorities for violation of statutory provisions. A penalty imposed by the sales tax authorities is only a civil liability, though penal in character. It may be relevant to notice that sub-section (2A) of section 9 of the Act specifically refers to certain acts and omissions which are offences for which a cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the concept of equality. The court observed that the sub-sections operate in different fields and that there is a rationale behind the classification, the equality contemplated under article 14 of the Constitution cannot be considered to have been violated. The contention which has been raised is based mainly on the ground that since the respondents have already been compensated, Parliament could not have enacted the provision for prosecution for the same default. There is no illegality or lack of jurisdiction with Parliament in making a provision for prosecution even in a case where the interest is charged which stands on different footing than the offence for which the punishment is provided. In these circumstances, this contention ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
