Roshan Lal vs Special Chief Judicial Magistrate

A.K. Roopanwal, J.—By means of this application u/s 482 of the Cr. P.C. a request has been made that the proceedings of Complaint Case Nos. 2302 and 2303 of 1987 between Union of India v. Ram Lal Roshan Lal, HUF, pending in the Court of Special C.J.M. (Economic Offences), Allahabad, be quashed.

The brief facts necessary to decide this petition are that there had been a Hindu undivided family whose Karta was Ram Lal. Accused No. 2, Roshan Lal, is admittedly the son of Ram Lal. The allegation in the complaint is that the income returns on behalf of the HUF were not submitted well within the time for the assessment years 1980-81 and 1981-82 and therefore, the offence punishable u/s 276CC of the Income Tax Act was committed. It was also the case of the complainant i.e., the Income Tax Department that Ram Lal, who was the Karta of the HUF and his son accused No. 2, Roshan Lal, were responsible for the commission of the aforesaid offence. Roshan Lal was tagged with the responsibility u/s 278C(2) of the Income Tax Act as the offence was committed with his consent and connivance. This allegation against accused No. 2, Roshan Lal was preciously made in para 11 of the complaint.

I have heard Mr. V.K. Upadhyay, learned Counsel for the applicant Roshan Lal, Mr. R.K. Upadhyay, learned Standing Counsel for the Income Tax Department and perused the record.

As the Karta of the HUF is Ram Lal, hence no request has been made on his behalf in this petition.

Learned Counsel for the applicant pointed out that by virtue of Section 140 of the Income Tax Act primarily the Karta of the HUF is liable to file the return and as Ram Lal was the Karta of the HUF, he was served with the notice by the Income Tax Department to file returns for the aforesaid assessment years, hence the late filing of the returns could be the sole fault of Ram Lal and at the most he could be saddled with the liability for commission of the offence, if any, u/s 276CC of the Income Tax Act. He further pointed out that the offence, being an offence u/s 276CC of the Income Tax Act, it shall be deemed to have been committed on the date when the period for the filing of return expired. Therefore, to attract the provisions of Section 278C(2) of the Income Tax Act against any person other than the Karta of the HUF it should be shown by the complainant that such person connived or consented in the commission of the offence on the date when the offence was actually committed and because there no iota of evidence on the record to show that on the date when the offence is alleged to have been committed the member of the HUF. Roshan Lal ever connived or consented with the HUF or preciously with the Karta of the HUF in the late filing of the returns, hence the provisions of Section 278C(2) of the Act cannot be applied in the present case and no liability can be fastened for the late filing of the returns upon Roshan Lal, the applicant in this petition.

To the above, the learned standing counsel for the Income Tax Department argued that the Karta of the HUF being ill during the period when the returns were liable to be filed, hence it was the sole and sole concern of the present applicant Roshan Lal to file the returns and if the returns were not filed well within the time, hence it shall be deemed that the applicant, Roshan Lal, had consented and connived with the Karta of the HUF in the late filing of the returns and thus he is guilty for the offence with the aid of Section 278C(2) of the Income Tax Act.

After hearing learned Counsel for both the sides, I am of the view that the argument of the learned Counsel for the Income Tax Department is not an acceptable one.

It does not appear from the complaints that the complainant came with this allegation that the Karta of the HUF was ill up to the time when the returns were required to be filed and the Karta had transferred his liability in this regard to the applicant, hence the applicant cannot be said to have consented or connived with the Karta of the HUF in the late filing of the returns. The complainant had averred only this much in both the complaints that the applicant Roshan Lal had connived and consented for the offence committed by the Karta of the HUF as he appeared in the Income Tax proceedings for the HUF and filed the statements on behalf of the HUF. Even if this allegation is accepted as true, it would only show that the applicant appeared in the picture only after the date fixed for the filing of returns and the proceedings were undertaken by the department. As the offence shall be deemed to have been committed on the date when the returns were required to be filed, hence the involvement of the applicant after this date cannot be sufficient to show that he consented or connived in the late filing of the returns. Mere participation of the applicant in the Income Tax proceedings cannot be a ground to tag him with the commission of any offence under the Income Tax Act as the offence had already been committed.

Thus, I am of the view that no responsibility can be fastened upon the applicant with the aid of Section 278C(2) of the Income Tax Act for the offence punishable u/s 276CC of the Income Tax Act and the complaints have improperly been filed against him and these complaints are liable to be quashed

Accordingly, the application is allowed and the proceedings of Complaint Case Nos. 2302 and 2303 of 1987, mentioned above, are quashed.