R. RAJAGOPAL Vs. S. RAMAYAMMA AND ORS.

JUDGEMENT

(1.) All these Criminal Revision Cases are filed by the Income Tax Department aggrieved by the common order dated 12.03.2014 passed by the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai. By the said order dated 12.03.2004, the petitions filed by the respondents herein for discharging them from the purview of Criminal Prosecution has been allowed. As the criminal revision cases are filed against a common order and common argument has been advanced by counsel for both sides, these Criminal Revision Cases are taken up and are disposed of by this common order.

(2.) 2.1 The case of the prosecution/revision petitioner/complainant is that one Ramayamma (in short "The Vendor") has sold the property situated at No.1/1, Luz Avenue, Chennai - 600 004 in favour of the respondents in Crl.R.C. Nos. 1553 and 1554 of 2004 (in short the purchasers) by executing six sale deeds during March 1995 in their favour thereby she transferred 1/6th of undivided share of the aforesaid property for a sale price of Rs.9,00,000/- each having a total sale consideration of Rs.54,00,000/-. It is claimed by the vendor that out of the sale price of Rs.54,00,000/-, a sum of Rs.44,00,000/- has been remitted to the account of Indian Bank to discharge the debt and the balance sum of Rs.10,00,000/- has been received by her in cash. Thereafter, a search was conducted under Section 132 of the Income Tax Act, 1961 (hereinafter referred to as "The Act") in the residence of the vendor. During the course of such raid, certain documents were said to have been seized by the department, based on which, the prosecution claimed that the sale value of the property sold by the vendor is nearly Rs.130 lakhs and it was grossly under-valued as Rs.54,00,000/- to evade payment of tax. Therefore, on 16.10.1996, a show cause notice was issued by the Department under Section 158 BCX of the Act calling upon the vendor to show cause as to why action should not be initiated under Section 276 AB of the Act for contravening the provisions of Section 269 UC of the Act for the transactions effected by her for the Assessment years 1987 to 1988 to 1996-1997. Similar notices have been issued to the purchasers/respondents herein on 22.10.1996 stating that no immovable property of the value exceeding Rs.10,00,000/- should be transferred without an agreement for transfer and by submitting Form 37-I and Rule 48 L of the Income Tax Rules, 1962. A reply was sent by the purchasers/respondents stating that each of them have only purchased 1/6th of undivided share of the property for a consideration of Rs.9,00,000/- and therefore there is no legal obligation cast on them to get the No Objection Certificate nor the appropriate authority could assume jurisdiction under the provisions of the Act.

(3.) 3.1. The learned senior Special Public Prosecutor for Income Tax Cases, appearing for the petitioner mainly argued that the order dated 23.02.2001 passed by this Court in WP No. 20364 of 1999 filed by the vendor, directing the trial Court to take note of the immunity certificate granted to her and to pass an order afresh, cannot be made applicable to the purchasers herein. Even to the vendor, the immunity certificate granted by the Department under the scheme will not enure to her benefit to get discharged from the criminal prosecution as the criminal prosecution is launched for non-filing of Form 37-I, which is a statutory obligation as contemplated under Section 269 of the Act. The criminal prosecution launched against the vendor and the purchasers is a separate proceeding inasmuch as the vendor as well as the purchasers have contravened the provisions contained in the Act and Rules. Even assuming without admitting that immunity certificate was granted to the vendor under the scheme, it has nothing to do with the violation committed by her in not filing the declaration under Form 37-I of the Act. It is also not the case of the purchasers that this Court issued any direction to them to file appropriate petition for dropping the proceedings against them, as in the case of the vendor, therefore, the benefits of the scheme availed by the vendor cannot be made applicable to the purchasers herein. According to the learned Senior Public Prosecutor, the filing of declaration is very important and the immunity certificate obtained by the vendor has nothing to do with the filing of declaration. It is his contention that the provisions under Section 276 AB does not speak about any tax at all and the failure to file the declaration under Form 37 I is an offence punishable under the provisions of the Act. Section 276C, 276CC and 276CCC of the Act clearly indicate that there is a premtive right on the part of the Central Government to take away the property of any assessee for non filing of Form 37-I of the Act. Therefore, as contemplated under Section 269 UA2 (3) of the Act, the person interested has to be taken note of.