Delhi District Court
Manish Periwal vs Assistant Commissioner Of Income Tax ... on 24 July, 2017
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE/
SPECIAL JUDGE (CBI) (PC ACT)
CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI
(1) Criminal Revision No. 294/2017 (arising out of CC No. 517651/16)
CNR Number:DLCT010003-2017
Manish Periwal
Son of Sh. M.P. Periwal,
Resident of C-165, Defence Colony,
New Delhi -110024 .................Revisionist
Versus
Assistant Commissioner of Income Tax (ACIT)
Through Sh. Surjeet Singh
ACIT, Central Cir-02,
Income Tax Department,
Room No. 363, E-2, ARA Centre,
3rd Floor, Jhandewalan Extn.,
New Delhi-110055 ................. Respondent
(2) Criminal Revision No. 295/2017 (arising out of CC No. 522465/16)
CNR Number:-DLCT010002-2017
Manish Periwal
Son of Sh. M.P. Periwal,
Resident of C-165, Defence Colony,
New Delhi -110024 .................Revisionist
Versus
Assistant Commissioner of Income Tax (ACIT)
Through Sh. Surjeet Singh
ACIT, Central Cir-02,
Income Tax Department,
Room No. 363, E-2, ARA Centre,
3rd Floor, Jhandewalan Extn.,
New Delhi-110055 ................. Respondent
Date of filing of Revision Petition : 11.07.2017
Date of conclusion of arguments : 20.07.2017
Date of judgment : 24.07.2017
Criminal Revision No. 294/17 & 29516 (Manish Periwal Vs. ITO) page 1 of 7
Memo of Appearance
Sh. Arshdeep Singh, learned counsel for revisionist.
Sh. Manmeet Singh Arora, learned counsel for respondent.
ORDER
1. By this common order, I propose to dispose of both the aforesaid revision petitions.
2. A complaint (presently bearing number as CC No. 517651/16) was filed by Income Tax Department against revisionist for commission of offence under Section 276D of Income Tax Act 1961 for assessment year 2006-07 before the concerned court of Ld. ACMM(Special Act), Central District, THC, Delhi on 19.3.2015. Income Tax Department filed another complaint (presently bearing number as CC No. 522465/16) for offences under Sections 276C (I)(i) and 277(i) of Income Tax Act on 19.1.2016. Both the complaints were, however, for the same assessment year 2006-07 and were directed against the same accused.
3. Revisionist filed an application under Section 220 Cr.P.C. before the court of Ld. ACMM praying therein that 'cause of action' in both these complaints pertained to the same assessment year and these complaints were outcome of the same information. It was also contended that the allegations, in both the complaints, were emanating from the same transaction and even major chunk of the witnesses (four out of five witnesses) were same. It was, therefore, prayed that both the complaints be clubbed to avoid multiplicity of the proceedings and also to avoid prejudice to the accused. It was also mentioned that both the complaints were at the initial stages and even the charge/notice had not yet been framed/served.
4. Ld. Trial Court, vide order dated 20.5.2017, dismissed the application observing that the offences in both the complaints were distinct and even Criminal Revision No. 294/17 & 29516 (Manish Periwal Vs. ITO) page 2 of 7 the procedure of trial for said two complaints was different. Section 276C (I) & 277 of Income Tax Act attracted procedure prescribed for trial of warrant cases whereas the other complaint related to Section 276D of Income Tax Act was governed by procedure prescribed for trial of summons cases.
5. The Income Tax Department had also contended before the Ld. trial court that clubbing of such two complaints would cause inconvenience to the court as well as to the parties.
6. Ld. Trial Court held that there was no requirement of clubbing the said two complaints and separate orders to that effect were passed which are under challenge before me.
7. Since issue raised is common, I propose to dispose of both the revision petitions by this common order.
8. Trial court record has been received. I have carefully gone through the same and given my thoughtful consideration to the contentions made by both the sides. I have also seen the relevant sections of Cr.P.C. and Income Tax Act as well including Sections 280C & 280D of Income Tax Act. As per Section 280C of Income Tax Act, offence punishable with imprisonment not exceeding two years or with fine or both is required to be tried as a summons case.
9. Section 276D of Income Tax Act attracts sentence upto one year besides fine and it is, therefore, required to be tried in a manner prescribed for trial of 'summons case'. In such type of cases, once accused is summoned, there is no requirement of asking the Complaint to lead any pre-charge evidence. With respect to offences under Section 276C (1)(i) and 277(i) of Income Tax Act, since the prescribed punishment can go upto seven years, the procedure meant for trial of warrant cases would be applicable. Ld. Trial Court has adopted the procedure prescribed for trial of warrant cases and has, therefore, fixed the matter for pre-charge evidence in CC Criminal Revision No. 294/17 & 29516 (Manish Periwal Vs. ITO) page 3 of 7 No. 522465/2016.
10. As far as Section 276D of Income Tax Act is concerned, it is comparatively milder section which prescribe prosecution when any person willfully fails to produce accounts and documents. The offence would be complete on such failure. The other two penal sections whereas are serious in nature. Section 277 deals with false verification and Section 276C deals with willful attempt to evade tax. These stand attracted after assessment proceedings are conducted.
11. Sh. Arshdeep, ld. counsel for the revisionist has relied upon the following judgments:
(i) Kadiri Kunhahammad Vs. State of Madras [AIR 1960 SC 661],
(ii) Praveen @ Bunty Prabhudayal Kodwani Vs. State of Maharashtra [2001(3) Mh.L.J. 560],
(iii) Manoj Alias Panu Vs. State of Haryana [(2014) 2 SCC 153],
(iv) Mohd. Akhtar Hussain @ Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs (Prevention), Ahmedaba & anr. [(1988) 4 SCC 183],
(v) Kanji Vijpal Vs. Pandurang Keshav Rane [AIR 1940 Bom 413], and
(vi) Rajnarain Koonwar Vs. Lal Tamli Raut [(1884) ILR 11 Cal.91].
12. His counterpart Sh. Arora has rallied behind following judgments:
(i) R. Vasudevan Vs. CBI [Crl. M. C. 1281/2012 decided by Delhi High Court on 1.6.2012],
(ii) Hitesh Nagpal Vs. State & anr. [CR.M.C. 646/2006 & Crl. MA 2412/2008 decided by Delhi High Court on 13.3.2009], and
(iii) Essar Teleholdings Ltd. Vs. CBI [(2015) 10 SCC 562].
13. I have carefully gone through the aforesaid authorities cited at the bar. It Criminal Revision No. 294/17 & 29516 (Manish Periwal Vs. ITO) page 4 of 7 is evident that according to Ld. counsel for revisionist since complaints in question pertain to the same transaction, there should be a joint trial. According to him offences in question have been allegedly committed in the course of the same transaction and, therefore, it was a fit case where joint trial should have been ordered. Relying on Praveen @ Bunty (supra), it has been claimed that all the offences mentioned in such two complaints are connected together in such a manner as to form same transaction and there is continuity of action and even for the purpose of proving graver offences mentioned in CC No. 522465/16, the Income Tax Department would be first required to prove facts which form the basis of CC No. 517651/16. According to him, it would be an unnecessary exercise which can easily be avoided by ordering joint trial. It has also been contended by Sh. Arshdeep Singh that if there is a joint trial, in case of any possible conviction in future, the accused would also be in a position to avail the benefit of Section 31 Cr.P.C. which prescribes concurrent running of sentences. On the strength of Kanji Vijpal (supra) it has been argued that even if different procedures of trial are prescribed for such offences these can be tried together and in such eventuality, the procedure for trial of warrant cases would stand attracted.
14. Sh. Arora, Ld. counsel for respondent/department has, however, claimed that the power under Section 220 Cr.P.C. is discretionary one and accused cannot ask for joint trial as a matter of right. In this regard, reliance has been placed on Essar Teleholdings Ltd. (supra). As regards benefit of Section 31 Cr.P.C., while relying on Hitesh Nagpal (supra), it has been claimed that if the accused has committed different offences, then he should be convicted separately else the deterrent effect of penal provision would stand denuded completely. According to him, even otherwise, it is premature to speculate the outcome of the complaints.
15. The scope of trial in a case relating to Section 276D of Income Tax Act is very constricted. Department is only required to show that the accused had willfully failed to produce the accounts and documents as per notice under Criminal Revision No. 294/17 & 29516 (Manish Periwal Vs. ITO) page 5 of 7 Section 142 of Income Tax Act. In such complaint, actually speaking, nothing further is required to be proved. Whereas in the other complaint, trial is much more comprehensive and elaborate as it has to be found out whether the accused has made a false statement in verification and whether there is willful attempt to evade tax. Since scope is much wider, the clubbing of two complaints would not serve any real purpose and would rather create confusion in the mind of the court as well as in the mind of department.
16. Undoubtedly, both the complaints are with respect to the same assessment year but that by itself would not be the yardstick for deciding the issue in question.
17. Leaving aside the aspect whether the offences are part of the same transaction or not and whether procedure of trial is same or different, there is no qualm with respect to the fact that the power given under Section 220 Cr.P.C. is discretionary. It cannot be claimed as a matter of right.
18. Joint trial is an enabling provision.
19. Moreover, the court is duty bound to see and evaluate whether such joint trial would cause any prejudice to the accused or not. Such discretionary power, therefore, has to be exercised sparingly and under exceptional circumstances. Since the procedure of trial in the aforesaid complaint cases is different, it can always cause prejudice to the accused and also create confusion in the mind of complainant department as well. Merely because the major chunk of the witnesses is common and the assessment year is common, would not, therefore, be compelling enough to go for a joint trial. Such proposed joint trial would also delay the trial of complaint relating to CC No. 517651/2016 as such case would have to wait until and unless the pre-charge evidence in the other case had been completed.
20. In view of the aforesaid, I do not find any merit in the two revision petitions. Both the revision petitions are, accordingly, dismissed.
Criminal Revision No. 294/17 & 29516 (Manish Periwal Vs. ITO) page 6 of 7
21. I would hasten to supplement that it will be still open to learned trial court to fix up and take up these matters together in future to ensure the least inconvenience to parties, their counsels and witnesses as well.
22. A signed copy of the order be placed in file relating to Criminal Revision No. 294/17. Reader of the court is directed to place certified copy of such order in connected case, i.e. Criminal Revision No. 295/17.
23. Trial Court record of both the cases be sent to the Ld. Trial Court along with copy of the order.
24. Files of both the revision petitions be consigned to record room.
Announced in the open Court
On this 24th day of July, 2017 (MANOJ JAIN)
ASJ/Special Judge (CBI) (PC Act)
Tis Hazari Courts, Delhi
Criminal Revision No. 294/17 & 29516 (Manish Periwal Vs. ITO) page 7 of 7