BOMIN PRIVATE LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONER Nos. 2 and 3 are the managing directors respectively of petitioner No. 1 company duly registered under the Companies Act. They are assessed to income tax on the income of the company and as per the provisions of the IT Act, they are required to file advance tax estimates as well as income tax returns at the end of the year. The petitioners filed their returns for the asst. yr. 1981 82 (relevant to the accounting year 1980 81). In the returns, they showed their income to be Rs. 9,34,061 on 31st March, 1982, by the return dt. 30th June, 1982. Petitioner No. 1 company had submitted its estimate of income and has paid advance tax of Rs. 4,92,000 on an estimated income of Rs. 8,00,000. Petitioner No. 1 company, along with the return, paid the balance tax of Rs. 82,500 on their income of Rs. 9,34,061. The ITO, after hearing the parties, assessed the income of petitioner No. 1 company to be an amount of Rs. 10,19,530. The ITO also issued a demand notice for the balance of tax to be paid as tax on the said amount of Rs. 10,19,530 being Rs. 6,27,010. As the difference between the advance tax paid on self assessment and the tax on the assessed amount came to be Rs. 1,52,500 and being more by 20 per cent. of self assessed income, it is alleged that petitioner No. 1 company committed breach of S. 212 of the IT Act. Against the order of assessment, petitioner No. 1 company had preferred an appeal before the Tribunal and, on hearing the parties, the Tribunal partly allowed the appeal of petitioner No. 1 company and the income assessed came to be Rs. 9,60,941 and the difference between the tax payable and the tax paid came to be Rs. 98,400. Despite this, considering the originally assessed amount and tax thereon to be more by 25 per cent. of the latter amount, the IT Department filed a complaint under S. 276C(2) of the IT Act, 1961, in the Court of the Addl. Chief Metropolitan Magistrate at Ahmedabad. The said complaint was registered being Criminal Case No. 134 of 1987. The complaint was filed alleging breach of S. 212 of the IT Act without considering the judgment of the Tribunal.

(2.) THE petitioners, having succeeded before the Tribunal, filed an application on 10th Jan., 1991, before the Addl. Chief Metropolitan Magistrate, Ahmedabad, under S. 279(1A) of the Act to dispose of the complaint as the income assessed was reduced and the penalty imposed on the petitioner company was set aside. The said application being dismissed, the petitioner has filed this petition against the judgment and order on the application of 10th Jan., 1991, as well as for quashing the criminal proceeding on the ground that, in view of the judgment in appeal by the Tribunal, the difference between the tax paid and the tax to be paid did not exceed 20 per cent which is a sine qua non for filing the complaint.

(3.) IN the case of the assessee being a company the figures and words are to be read as 20 per cent. instead of 33 1/3 per cent. According to the original complainant, the IAC, as the petitioners have wilfully evaded the payment of tax, the company has committed an offence punishable under s. 276C of the Act.