Income Tax Officer vs P.B. Babu

K.J. Joseph, J.—This is a petition filed by the complainant in C.C. No. 45 of 1988 on the file of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. The said case was filed against the accused therein, the respondent herein by the complainant alleging offences punishable under Sections 276C(1)(c)(ii) and 277(ii) of the Income Tax Act, 1961. The learned Magistrate after trial found the accused guilty of the above offences and imposed a sentence on him to undergo three months'' rigorous imprisonment and to pay a fine of Rs. 5,000 and in default of payment of fine, to undergo rigorous imprisonment for two months under each count.

Aggrieved by the said conviction and sentence, the respondent herein filed an appeal before the Sessions Court, Ernakulam, as Criminal Appeal No. 500 of 1091. The Sessions Court considered the entire matter on the merits and passed his judgment dated July 6, 1993, confirming the conviction of the respondent herein, hut reduced and modified the sentence imposed on him. The respondent is sentenced to undergo imprisonment for three days for each of the offences under Sections 276C(1)(ii) and 277(ii) of the Income Tax Act and to pay a fine of Rs. 1,000 on each count and in default of payment of fine, to undergo simple imprisonment for one month on each count. The learned judge also directed to undergo the substantive sentence concurrently. The period of detention of the respondents/accused in jail for three days from June 17, 1991, to June 19, 1991, is set off in the sentence of imprisonment and, hence, the learned judge ordered that the respondent need not be sent to jail again. As stated earlier, the learned judge has pronounced the judgment on July 6, 1993.

It is, thereafter, that the complainant has filed an appeal before this court on May 23, 1994, praying for the reversal of the judgment passed hy the appellate court and restoration of the order of the Chief Judicial Magistrate. Admittedly, the said appeal is filed out of time prescribed under law. The appellant/complainant, therefore, filed a petition to condone the delay of 188 days as Criminal Miscellaneous Petition No. 1701 of 1994 on June 27, 1994, before this court. This court, thereafter, issued notice to the respondent/accused in the case on July 19, 1994. Pursuant to the said notice, the respondent entered appearance and filed a counter-affidavit in the above criminal miscellaneous case. The petition for delay has thus come up for final hearing before this court today.

I heard learned counsel appearing on behalf of the petitioner/complainant. I also heard learned counsel appearing on behalf of the respondent.

The question to be decided is whether there are sufficient legal grounds to condone the delay of 188 days in filing the appeal before this court against the order passed by the appellate court. Admittedly, the appeal was filed before this court only on May 23, 1994. By that lime, the appeal is hopelessly time-barred. The petition to condone the delay, viz., Criminal Miscellaneous Petition No. 1701 of 1994 itself was filed before this court only on June 27, 1994, as can be seen from the petition filed by the petitioner. There is absolutely no explanation offered by the complainant why the said delay petition was not filed along with the appeal on May 23, 1994,

In support of the petition to condone the delay of 188 days, the complainant has produced an affidavit filed by the Assistant Director of Income Tax (Prosecution), Office of the Commissioner of Income Tax, Cochin. He had stated that the judgment is dated July 6, 1993, but the application for attested copy of the judgment was filed only on July 10, 1993, and though the stamp paper was called on July 29, 1993, the same was produced in court only on August 2, 1993. The attested copy of the judgment was delivered on August 16, 1993. But his office, viz., the office of the Assistant Director of Income Tax (Prosecution) has received the same only on October 4, 1993, from the office of the prosecution counsel. It is further stated that on October 5, 1993, itself, his office wrote to the prosecution counsel for clarification and on the basis of the clarification received, the matter was reported to the Chief Commissioner of Income Tax. He accepted the decision of the sessions court, even though the order was wrong according to the deponent. But the Chief Commissioner thereafter had taken a decision to file an appeal on March 7, 1994, and the matter was addressed to prosecution counsel, who replied on March 28, 1994, wherein it is informed that the appeal is barred by limitation. Thereafter, the appeal was filed. According to the deponent, the Chief Commissioner is the ultimate authority to take a decision except in cases where references are made to the senior standing counsel and since no reference was made to the senior standing counsel, in the light of the decision taken by the Chief Commissioner, the appeal is filed.

The respondent has filed a counter-affidavit stating that there is absolutely no legal or justifiable ground stated by the petitioner and mentioned in the affidavit to condone the delay. According to him, the appeal filed by him against the order of conviction and sentence passed by the Chief Judicial Magistrate, was considered by the appellate judge on the merits and while confirming the conviction, the learned judge after taking into consideration the entire aspect of the matter, reduced the substantive sentence of imprisonment and this, according to learned counsel, is fully justified on the facts and circumstances of the case. According to the respondent, the grounds stated by the deponent in the affidavit is not sufficient to condone the delay since he had already undergone the sentence imposed on him by the appellate court and paid the fine. According to learned counsel for the respondent, after the accused had undergone the sentence of imprisonment as ordered by the appellate court, there is no justification for condoning the delay of 188 days in filing the appeal. Learned counsel further submits that the delay had not been properly explained with sufficient reasons and in case the delay is condoned, the respondent will be put to irreparable injury and hardship in respect of an offence alleged to have been committed in respect of the assessment years 1984-85 and 1985-86 after a long lapse of nearly ten years, The respondent also contended that the deponent of the affidavit is not competent to file an affidavit in support of the delay petition and on the basis of the said affidavit, this court may not be justified in condoning the delay. It is further submitted by learned counsel for the respondent that the complainant is the only competent person to file an affidavit in support of the condonation petition and since the complainant, viz., the Income Tax Officer, did not file any affidavit in support of the petition to condone the delay, this court shall not exercise its discretion in favour of the complainant and condone the delay. The last two contentions are absolutely unsustainable. The deponent of the affidavit is none other than the Assistant Director of Income Tax (Prosecution) attached to the office of the Commissioner of Income Tax. It cannot be said that he is not competent to file an affidavit explaining the grounds for not filing the appeal in time. He is competent to file an affidavit. It is also not compulsory that the complainant himself has to file an affidavit in support of the condonation petition. Any person who is acquainted with the facts of the case and the person who is in the know of things is competent to file an affidavit justifying the grounds for not filing the appeal in time. Therefore, there is no merit in the above two contentions raised by learned counsel for the respondent.

But taking into consideration the fact that the accused had already undergone the sentence of imprisonment ordered by the appellate court and the offence found to have been committed by the accused is in respect of the assessment years 1984-95 and 1985-86 and more than nine years have elapsed after the period of assessment, I see no justification to condone the delay at this distance of time. The delay had not been properly explained. The petition is, therefore, dismissed.