Satyaban Roy vs State of Jharkhand and Another

R.R. Prasad, J.—Through this application inherent power of this Court has been invoked for quashing the entire criminal proceeding of CO. case No. 24 of 2005, pending in the court of Special Judge, Economic Offences, Dhanbad including the order dated 11.2.2005 whereunder cognizance of the offence u/s 278 of the Income Tax Act has been taken against the petitioner

Learned Counsel appearing for the petitioner submits that it is the case of the prosecution, as has been disclosed in the complaint lodged by Income Tax Officer, that one Mrs. Munna Chatterjee, an assessee under the Income Tax Act filed her income tax return for the financial year 2002-03 along with TDS certificate purportedly issued by Life Insurance Corporation, Chirkimda Branch whereby refund of Rs. 36,273/- was claimed.

Further case is that on verification and enquiry from the concerned L.I.C. officer, the said TDS certificate was found to be forged. Pursuant to that, a show cause notice was issued to Mrs. Munna Chatterjee, who on getting the said notice, did reply that she had handed over the return duly signed by her to this petitioner who prepared the document and filed it with return giving fabricated information relating to her Income chargeable to tax and on that allegation, prosecution was launched not against the said Mrs. Munna Chatterjee but also against this petitioner wherein petitioner was alleged to have abetted and induced the assessee to deliver the account which both of them were knowing to be fabricated and as such, the petitioner has been alleged to have committed offence u/s 278 of the Income Tax Act, 1961.

Learned Counsel appearing for the petitioner submitted that accepting the entire allegations made in the complaint to be true, the petitioner can never be said to have committed offence u/s 278 of the Income Tax Act, as the petitioner has not been alleged to have induced or abetted the assessee to file false return, rather return as per the version of the assessee was ''landed over to this petitioner voluntarily for its filing before the competent authority and as such, mere filing of the return would not attract any criminal liability so far this petitioner is concerned.

It was further submitted that it is never the version of the complainant that it was the petitioner, who procured and furnished the TDS certificate along with return to claim refund of the money, rather it is the assessee, who says so and as such, one should not be prosecuted on the version of the co-accused and that too for abetment of the offence. Moreover, filing of the return does not per se amount to commission of any offence of abetment and this proposition of law has been laid down by the Delhi High Court in a case of Lalji and Co. and Others Vs. Delhi Administration and Others, and also in a case of Navarathna and Co. Vs. State (Income Tax Officer, Central Circle, Madras), .

Thus, it was submitted that the entire proceeding is fit to be quashed.

As against that, learned Counsel for the opposite party No. 2 submitted that facts, which led the complainant to file a complaint, do constitute offence u/s 278 of the Income Tax Act and hence, the court below is absolutely justified in taking cognizance of the offence.

Having heard learned Counsel appearing for the parties and on perusal of the record, it does appeal that on the basis of TDS certificate said to have been issued by Life Insurance Corporation, Chirkunda Branch, refund of the money was claimed, upon filing of a return by the assessee for the financial year 2002-03. When the said certificate was found to be forged, it was disclosed by the assessee that the same having been procured by the petitioner was filed along with return and thereby the petitioner has been alleged to have abetted the assessee to commit offence u/s 277 of the Income Tax Act and the petitioner has been alleged to have committed offence u/s 278 of the Income Tax Act though it has been contended on behalf of the petitioner that in absence of any allegation that this petitioner Induced or abetted the assessee to file return with false Information based on forged document, the petitioner cannot be said to have abetted the offence.

In the context of this submission, one needs to take notice of the provision as contained in Section 278 of the Income Tax Act which reads as follows:

Section 278- Abetment of false return, etc.:

If a person abets or induces in any manner another person to make and deliver an account or a statement or declaration relating to any income (or any fringe benefit) chargeable to tax which is false and which he either knows to be false or does not believe to be true or to commit an offence under Sub-section (1) of Section 276C, he shall be punishable:

(i) in a case where the amount of tax, penalty or interest which would have been evaded, if the declaration, account or statement had been accepted as true or which is willfully attempted to be evaded, exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;

(ii) in any other case, with rigonous Imprisonment for a term which shall not be less than three months but which may extend to three years and with fine.

Obviously one would be tempted to know as to what kinds of act does the word abetment embrace in its fold. For that one needs to take notice of Section 107 of the Indian Penal Code which defines ''abetment'' which under the general clauses Act would be applicable to all central Act. The said provision reads as follows:

Abetment of a thing - A person abets the doing of a thing, who:

First-Instigates any person to do that thing; or

Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing; or

Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation- A person who by willful misrepresentation or by wilful concealment of a material fact which he Is bound to disclose, voluntarily causes or procures or attempts to cause or procure, a tiling to be done, is said to instigate the doing of that thing.

From its perusal it appears that in three situations one can be said to have abetted the offence.

(i) By instigating a person to commit offence or

(ii) By engaging in conspiracy to commit or

(iii) By Intentionally aiding a person to commit it.

By going to the third clause a person can be said to have abetted offence when he by aiding, by any act done either prior to, or at the time of, the commission of an act, be intends to facilitate and does, in fact, facilitate, the commission thereof. The intention must be to aid the commission of a crime. Mere giving of an aid will not make the act an abetment of an offence, if the person who gave the aid did not know that an offence was being committed or contemplated. In other words, if a person who lends his support does not know or has no reason to believe that the act which he was aiding or supporting was in itself a criminal act, it cannot be said that he intentionally aids or facilitates the doing of the offence. But here by going through the allegation made in the complaint, intention of the (petitioner, prima facie, appears to be to facilitate the commission of an offence as, according to the case of the complainant forged document having been procured by this petitioner was annexed with the return in order to claim refund.

Under this situation, I do not find any substance in the submission that the petitioner cannot be said to have abetted the offence.

In view of the proposition as aforesaid, the decisions cited on behalf of the petitioner are not at all applicable in this case as in the case of Lalji & Co. and Ors. v. Delhi Administration and Ors. (supra) the petitioner had simply introduced the principle accused to the parties indulging in Hawala transactions without having any oblique motive or design.

Similarly in a case of Navaratha and Co. v. State (Income Tax Officer, Central Circle, Madras (supra) the petitioner a Chartered Accountant was never found to have committed offence u/s 278 of the Income Tax Act by merely preparing returns for their clients on the basis of the accounts placed before them.

Thus, I do not find any merit in this application, Accordingly, this application is dismissed. However, before parting with this order, any observation or finding shall not be prejudicial to the right of the parties as observation/finding is related to the issue involved in this case.