Delhi District Court
Income Tax Officer vs . D. Manohar Lal Kothari, 236 Itr 357, ... on 12 July, 2010
IN THE COURT OF SH. DIG VINAY SINGH:ACMM(SPL. ACTS):TIS
HAZARI COURTS: DELHI
ITO
VS.
M/S. TELEVOX INDIA LTD.
CASE NOS.2630/4
COMMON ORDER
COMMON ORDER ON SENTENCE 12.7.2010 Pr. Sh. Brijesh Garg, standing counsel for the complainant.
Both the convicts Brijesh Batra and C.L. Batra are present on bail with counsel Mr. Praveen Kapoor, Adv.
Heard both sides.
Third convict is a company M/s. Televox India Ltd., which was proceeded against in absentia and none present for the company today. These three accused were convicted, for the offence u/s.276CC of Income Tax Act, 1961. These are total five cases and some relevant details are as under :
Sl. Old no. New No. Assessment Return Return Tax Demand Year due on filed on amount
1. 853/87 26/4 19821983 30.6.1982 17.2.1984 Rs.10306/
2. 854/87 27/4 19851986 30.6.1985 No Return ____
3. 855/87 28/4 19861987 30.6.1986 03.3.1989 ____
4. 856/87 29/4 19841985 30.6.1984 No Return Rs.24054/
5. 857/87 30/4 19831984 30.6.1983 No Return Rs.86389/ In all these five cases, the three accused were convicted for the offence u/s.276CC of Income Tax Act, 1961.
Ld. Counsel for the convicts requests for a lenient view stating that the convicts have faced trial for almost 23 years now and he prays for grant of benefit of probation to both the individual convicts. Counsel for the convicts rely upon the case of Lachhi Ram Vs. State decided by Hon'ble Delhi High Court on 23.9.2009 in Crl. Appeal No.426/98, CC nos.2630/4 page no.
1 of 5 wherein Hon'ble Delhi High Court, in a case under Essential Commodities Act where minimum sentence is provided, reduced the sentence to fine only.
On the other hand, Ld. Counsel for the complainant relies upon the case of Income Tax Officer Vs. D. Manohar Lal Kothari, 236 ITR 357, wherein it was held that Court cannot award punishment lesser than the minimum prescribed.
Under the Income Tax Act, 1961, a provision is made u/s.292A that nothing contained in section 360 of the Code of Criminal Procedure or in the Probation of Offenders Act, 1978, shall apply to a person convicted for the offence under the Income Tax Act, unless the convict is under the age of 18 years. Admittedly, in the present matter, none of the convict is under the age of 18 years. Therefore, probation is expressly barred. Even otherwise, Hon'ble Supreme Court in the following cases laid down that punishment below the minimum punishment provided cannot be awarded.
In the case of Superintendent Central Excise, Bangalore v. Bahubali (1979 (2) SCC 279), while dealing with Rule 126P (2)(ii) of the Defence of India Rules which prescribed a minimum sentence and Section 43 of the Defence of India Act, 1962 almost similar to the purport enshrined in Section 28 of the Act in the context of a claim for granting relief under the Probation Act, Hon'ble Supreme Court observed that in cases where a specific enactment, enacted after the Probation Act prescribes a minimum sentence of imprisonment, the provisions of Probation Act cannot be invoked if the special Act contains any provision to enforce the same without reference to any other Act containing a provision, in derogation of the special enactment, there is no scope for extending the benefit of the Probation Act to the accused. Unlike, the provisions contained in Section 5(2) proviso of the Old Act providing for imposition of a sentence lesser than the minimum sentence of one year therein for any "special reasons" to be recorded in writing, the Act did not carry any such power to enable the Court concerned to show any leniency below the minimum sentence stipulated. These aspects were also highlighted in State through SP, New Delhi v. Rattan Lal Arora (2004 (4) SCC 590). CC nos.2630/4 page no.
2 of 5 In AIR 2005 SUPREME COURT 3818 "State Govt. of NCT of Delhi v. Amar Singh" = 2005 AIR SCW 3983 :
The sole respondent was convicted by the trial Court under Section 16 (1A) of the Prevention of Food Adulteration Act, 1954 and sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.4,000/, in default, to undergo further imprisonment for a period of three months. The conviction and sentence were upheld by the Sessions Court, on appeal being preferred by the respondent. Thereafter, the respondent filed a Revision Application before the High Court which maintained the conviction but reduced the sentence of imprisonment from one year to 21 days and enhanced the fine from Rs. 4000/ to Rs.10,000/.
It was held by Hon'ble Supreme Court that under Section 16(1A) of the Act minimum sentence of one year imprisonment has been prescribed and no discretion has been given to the Court to reduce the same. This being the position, the High Court was held to have committed an error in reducing the imprisonment from less than the minimum period prescribed under the Statute.
In AIR 2004 SUPREME COURT 2608 "Dayal Singh v. State of Rajasthan"
In a case under Prevention of Food Adulteration Act (37 of 1954), S.16 , plea for modification in sentence in view of long pendency of case was negatived, in view of fact that accused had been sentenced to undergo 6 months' RI which was minimum sentence prescribed by law holding that stringent laws will have no meaning if offenders could go away with mere fine. (Para 15) In AIR 2003 SUPREME COURT 4058 "Mahendrakumar G. Patel v. State of Gujarat"
It is held as follows;
"We feel that in view of the mandatory provisions of Section 16 of the Act, no sentence lesser than the sentence provided by the statute can be awarded. The appellants have already been awarded the minimum sentence requiring no further reduction."
CC nos.2630/4 page no.
3 of 5 In AIR 1999 SUPREME COURT 1539 "Jagdish Prasad v. State of Uttar Pradesh" in a case under Prevention of Food Adulteration Act (37 of 1954), S.16, it is held as ;
" 3. It was also submitted by the learned counsel that the offence had taken place in 1979 and the appellant's father, who was the owner of the shop has now died and, therefore, some leniency should be shown to him. We cannot accept this submission because once the offence is held proved, the minimum sentence has to be imposed."
In AIR 1982 SUPREME COURT 1492 "State of A.P. Vs. S.R. Rangadamappa" it is held, " Where a statute prescribes a minimum sentence for an offence and does not provide for any exceptions and does not vest the Court with any discretion to award a sentence below the prescribed minimum under any special circumstances, the High Court cannot in its revisional jurisdiction reduce the sentence of imprisonment to less than the minimum prescribed."
(Para 2) Also see, State of J and K vs. Vinay Nand [2001(2) SCC 504] and the case of AIR 2007 SUPREME COURT 51 "State v. A. Parthiban"
Accordingly, sentence lesser than minimum sentence cannot be awarded. Section 276CC provides that 'where the amount of tax is less than Rs.1 lac, the punishment shall be for not less than three months, but it may extend to three years, with fine'.
In the present case, keeping in view the period of trial, the age of convicts and the amount sought to be evaded by non filing of returns in due time, in my considered view, following sentences would meet and ends of justice.
In all the five cases, convicts C.L. Batra and Brijesh Batra are sentenced to SI for a period of four months each. Both of them are also sentenced to pay a fine of Rs.25,000/ each. In default of payment of fine, they shall also undergo SI for one month each, separately, in all the five cases.
So far as accused company is concerned, the same is sentenced to pay a fine of CC nos.2630/4 page no.
4 of 5 Rs.25,000/, failing which attachment proceedings would be commenced.
Previous personal bonds surety bonds of the convicts cancelled. Both the individual convicts be taken into custody for undergoing the substantial sentence.
A copy of sentence order and judgment be supplied to the convicts immediately free of cost. All the five files be consigned to the Record Room.
At this stage, an application u/s.389 Cr.PC filed by the two individual convicts in all the five cases. These convicts were on bail during the trial. They are admitted to bail upon furnishing personal bond surety bond in the sum of Rs.20000/ with one surety each of like amount. Bonds tendered and accepted in all the five cases. File be consigned to the Record Room and bonds are directed to be listed on 11.8.2010 at 2 PM. Convicts and surety both to appear on 11.8.2010 at 2 PM.
(DIG VINAY SINGH) ACMM (SPL. ACTS)/ CENTRAL/DELHI/12.7.2010 CC nos.2630/4 page no.
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