J M SHAH Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THIS revision is directed against the conviction and sentence imposed by the learned Sessions Judge, Madras, in C. A. No. 103 of 1991 against the order of conviction imposed by the learned Additional Chief Metropolitan Magistrate (E.O.I.), Madras, in E.O.C.C. No. 268 of 1989 for the offence under section 277 of the Income-tax Act, 1961Learned senior counsel, Mr. G. Subramanian, appearing for the revision petitioner, would submit that the petitioner never intended to suppress his income in the return exhibit P-2 submitted by him for 1984-85 but as the property No. 15, Baliah Avenue, was occupied by him and only the notional rental income was to be worked out according to the provisions of the Income-tax Act, by mistake, the notional rental income for the house property was omitted to be mentioned in exhibit P-2 return and this has been accepted by the learned Principal Sessions Judge holding that the omission to include the notional rental income is not wilful on the part of the revision petitioner herein and also has acquitted the revision petitioner on that ground of the charge under section 276C(1). When such view has been taken by the learned Principal Sessions Judge for the offence under section 276C(1) of the Act, he cannot take a different view for the offence under section 277 of the Income-tax Act, holding that the return exhibit P-2, submitted for 1984-85, is a false statement attracting punishment under section 277 of the Income-tax Act, 1961Learned senior counsel further argues that the Income-tax Appellate Tribunal has cancelled the penalty imposed upon the revision petitioner under section 271(1)(c) of the Income-tax Act as seen from exhibit D-1 and when the penalty proceeding itself has been cancelled holding that there was no violation of the income-tax law on the part of the revision petitioner, the finding of the Tribunal has to be honoured and the revision petitioner cannot be convicted of the offence under section 277 of the Income-tax Act, 1961. On a perusal of the order of the Income-tax Appellate Tribunal under exhibit D-1, the Tribunal has not held that the failure of the revision petitioner to mention the income of the house property was unintentional or an incidental omission. But the Tribunal has merely considered the approach on the part of the Income-tax Officer in imposing the penalty for claiming the exemption under section 54F by the revision petitioner herein.

(2.) THE Tribunal holds that section 271(1)(c) of the Act does not seek to punish the assessee for making untenable claims. In this case as it appears from this order of the Tribunal, the Income-tax Officer had imposed the penalty under section 271(1)(c) of the Act against the revision petitioner for the sole reason that he was claiming exemption on the capital gain in spite of the fact that he was not entitled to such claim under section 54F as he owned two housing properties.

(3.) THEREFORE, the learned Principal Sessions Judge is not correct in holding that the statement which is not true per se, is an offence under section 277 of the ActWhen the learned Principal Sessions Judge has already found that the omission to mention the notional rental income in exhibit P-2 was not wilful, he cannot hold that the revision petitioner has committed the offence under section 277 of the Income-tax Act, because of the absence of mens rea or criminal intention.