TMI Blog2020 (11) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... onduct of the Petitioner by non-cooperation at the initial stage disentitles him to any relief - It would have to be examined with reference to the well known canons of the principles of natural justice that no material could be relied against a person without affording him an opportunity to explain his position before taking any decision entailing adverse civil consequence to him. In the fact situation that has arisen in this case, it was incumbent upon the Respondent to have informed the Petitioner before passing the impugned order that it was proposed to deny relief on account of such non-cooperation at the initial stage of the proceedings by bringing the same to his notice and supplying copies of the materials relied in support of the same, and calling upon him to submit explanation and also afford an opportunity of personal hearing, in that regard. The explanation of the Petitioner, if submitted, ought to be then considered before taking the final decision in the matter. Such exercise apparently has not taken place in the instant case as seen in the impugned order. The result of the foregoing discussion is that the impugned Order passed by the Respondent cannot be sustaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, Chennai, filed a criminal complaint against all the aforesaid four persons for the offences under sec. of sec.269UC/269UL (2) of the I.T.Act, before the Addl. CMM, EO-I, Chennai, hereinafter referred to as the trial court in EOCC No.594 of 2002. M/s. Soffia Software Ltd., Shri K. Venkataramani, M/s. Visharada Charitable Trust and Shri V.K. Lohia were arrayed as Accused No.1 to 4, respectively. The trial court by an order dated 29-04- 2010 convicted and sentenced all the four accused with the sentences of imprisonment and fine as tabulated herein below: Sl.No. Name of the accused Sentence of fine and imprisonment awarded by the trial court a) M/s Soffia Software Ltd Fine of Rs.2,50,000 for offence u/s 269UC and Rs.2,50,000 for offence u/s 269UL(2) r.w.s.276AB of the IT Act 1961. b) Shri.R.Venkata Subramani Fine of Rs.10,000 for offence u/s 269UC and Rs.10,000 for offence u/s 269UL(2) r.w.s. 276AB of the IT Act 1961, with one year RI. c) M/s Visharada Charitable Trust F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumstances of each offence need to be considered while dealing with such a request. Offences under Indian Penal Code cannot be compounded. They can, however, be withdrawn. 4.4. Cases not to be compounded:- Notwithstanding anything contained in the guidelines, the following cases should normally not be compounded:- .... (g) Any other ground, which the CCIT/DGIT may consider relevant for not accepting the compounding petition, in view of the nature and magnitude of the offence. The correctness of the aforesaid order is challenged in this Writ Petition. 4. It is vehemently contended by the Learned Counsel for the Petitioner: (i) that the Petitioner could not be denied relief in the compounding application for the reason that it had been filed after the conviction order has been passed by the Criminal Court inasmuch as appeal against the said order had been preferred in time, which is still pending, and as such, has not attained finality; (ii) that the reason stated that the Petitioner did not cooperate with the valuation of the property at the initial stage when action was taken under the relevant statutory provision, is unjustified; (iii)that the Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 009 in W.A. No. 439 of 2003), where it has been held as follows:- 5. This court carefully considered the submission of counsel for both the sides. The plea of the respondent is that section 279(2) of the Act permits the appellants to compound the offence either before or after the institution of the proceedings, which power is not exercised without any valid reasons; that when similarly placed person was convicted and whose conviction was confirmed by the appellate court and pending revision before this court in Crl. R.C. No. 588 of 1996, the assessee has filed similar petition for compounding the offence, which was entertained by the appellants after obtaining leave by filing Crl. M.P. No. 984 of 2000 in Crl. R.C. No. 588 of 1996, while so, refusing the same relief to the respondent, where the trial court alone convicted her and the appeal is pending, is discriminatory. 6. Now, we look into section 279(2) of the Act, which reads as under: 279. Prosecution to be at instance of Chief Commissioner or Commissioner. (2) Any offence under this Chapter may either before or after the institution of proceedings, be compounded by the Chief Commissioner or a Director General. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed statutory limitations. But in the case of revision whatever powers the revisional authority may have, it has no power to reassess and reappreciate the evidence unless the statute expressly confers on it that power. That limitation is implicit in the concept of revision. In this view of the matter we are supported by a decision of this court in State of Kerala -vs- K.M. Charia Abdullah and Co., (AIR 1965 SC 1585). 10. In the case on hand, against the conviction and sentence passed by the trial court, on the complaint preferred by the appellants, the respondent has filed an appeal and the same is pending, which is a prescribed course of action for enforcing a legal right. The said appeal is also a proceeding as contemplated under section 279(2) of the Act. 11. For the discussions above, this court is of the considered view that pending appeal, the appellants can very well compound the offence sought for by the respondent, which they failed. It is not out of context to mention that in earlier occasion, the appellants have allowed the application for compounding of offence filed by similarly placed assessee, who was convicted by the trial court, his appeal was also dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tand in the way for considering a compounding application when appeal against conviction by the Criminal Court is pending, as in this case. Though the Respondent has made a distinction for granting the benefit of compounding to others while denying the same to the Petitioner for the reason that their compounding applications have been made before conviction by the Criminal Court, such distinction cannot be of any avail in view of the binding decisions of the Division Benches of this Court, as referred earlier. 8. Coming to point no. (ii) that the non-cooperation of the Petitioner at the initial stage of the proceedings would disentitle him for relief in terms of guidelines 3 read with 4.4 (g) of the aforesaid circular issued by CBDT, it would have to be examined with reference to the well known canons of the principles of natural justice that no material could be relied against a person without affording him an opportunity to explain his position before taking any decision entailing adverse civil consequence to him. In the fact situation that has arisen in this case, it was incumbent upon the Respondent to have informed the Petitioner before passing the impugned order that it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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