A.B.Shanthi @Venniradai Nirmala v. Assistant Director of Inspection(Investigation)O/o.Deputy Director of Investigation,Income Tax Office,Nungambakkam High Road,Chennai-34

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 05.06.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.R.C.No.889 of 2002A.B.Shanthi @Venniradai Nirmala .. Petitioner/Accusedvs. Assistant Director of Inspection(Investigation)O/o.Deputy Director of Investigation, Income Tax Office, Nungambakkam High Road, Chennai-34... Respondent/ComplainantPrayer: This Revision petition has been preferred against judgment dated 30.11.2001 made in Crl.A.No.182 of 1997 on the file of the Principal Session Judge, Chennai, confirming the judgment in E.O.C.C.No.207 of 1986 on the file of the AdditionalChief Metropolitan Magistrate, Chennai, dated 01.10.1997.For Petitioner : Mr.A.K.MylsamyFor Respondent : Mr.K.Ramasamy Senior Special Public Prosecutorfor Income Tax casesJUDGMENTThis revision petition has been preferred against the judgment in C.A.No.182 of 1997 on the file of the PrincipleSessions Judge, Chennai, which had arisen out of the judgment rendered by the learned Additional Chief Metropolitan Magistrate, Chennai, in E.O.C.C.No.207 of 1986.2.

The short facts of the complaint is that the revisionpetitioner/accused, a cinema actress, had obtained a loan ofRs.4,65,000/- from the All India Anna D.M.K party, Chennai, asper the entry made in the above said party's ledger folio on17.4.1986. The accused had admitted in her sworn statement given before the Assistant Director of inspection (investigation) on23.4.1986 about the above said borrowal of Rs.4,65,000/- from the https://hcservices.ecourts.gov.in/hcservices/ above said political party. According to the prosecution as persection 269SS of Income Tax Act 1961, a person can obtain any loan or deposit only through an account payee cheque or an account payee bank draft if the amount of loan exceedsRs.10,000/-. Since the loan obtained by the accused which is above Rs.10,000/- was not by way of account payee cheque or account payee bank draft, according to the prosecution, there isa violation of Section 269SS of the Income Tax Act, 1961, by the accused which is liable to be punished under Section 276DD r/w269SS of the Income Tax Act.3.

The case was taken on file by the learned AdditionalChief Metropolitan Magistrate EO-II, Egmore, as E.O.C.C.No.207 of1986 and on appearance of the accused on summons copies under Section 207 Cr.P.C., were furnished to the accused and when charges were explained to her, she pleaded not guilty.4. Before the Trial Court P.Ws.1 to 5 were examined andEx.P.1 to Ex.P.27 were marked. On the basis of the evidence ofP.Ws.1 to 5 when the incriminating circumstances were put to the accused, the accused had denied her complicity with the crime. The accused has examined herself as D.W.1 and Ex.D.1 to Ex.D.3were marked on her side.5. When the proceedings were pending, the accused approached the Honourable Apex Court of India in Crl.A.601/1992 against the order passed by this Court in Crl.M.P.2854/1988 challenging the constitutional validity of Section 269SS, 276DD & 271D of the Income Tax Act. The Honourable Apex Court in Crl.A.No.601/1992(along with Crl.A.4478/2000) has held that Section 269SS, 271D,276DD are constitutional.

Crl.A.No.601/1992 was filed by the Assistant Director of Inspection (Investigation) of the IncomeTax Department and the respondent therein is the present accusedKumari.A.B.Shanthi. When the above said Crl.A.No.601/1992 was pending before the Honourable Apex Court, a direction was given by the Honourable Apex Court in Crl.M.P.5557/1992 in Crl.A.No.601/1992, dated 26.7.1993, to the effect that the substantive sentence in E.O.C.C.No.207 of 1986 shall not be given effect to until further orders from the Honourble Apex Court.6. The learned Trial Judge after due consideration of the evidence both oral and documentary placed before him has come to the conclusion that the charges levelled against the accused under Section 276DD r/w 269SS of Income Tax Act has been proved beyond any reasonable doubt and accordingly convicted the accused and sentenced her to undergo 2 years RI and a fine ofRs.4,65,000/- with default sentence.

The learned trial judge has suspended the sentence of imprisonment alone as per the directions of the Honourable Apex Court in Crl.M.P.5557 of 1992 https://hcservices.ecourts.gov.in/hcservices/ in Crl.A.No.601 of 1992 dated 26.7.1993. Aggrieved by the findings of the learned Trial Judge, the accused had preferred an appeal before the Principal Sessions Judge, Chennai, inC.A.182/87. The learned Sessions Judge, after giving due deliberations to the arguments adduced on both sides, has confirmed the orders of the learned trial judge in E.O.C.C.No.207of 1986 on the file of the Additional Chief MetropolitanMagistrate EO-II, Egmore at Chennai, thereby dismissing the appeal. The learned Sessions Judge has also suspended the sentence of imprisonment as per the directions of the HonourableApex Court in Crl.M.No.5557 of 1992 in Crl.A.No.601 of 1992 dated26.7.1993, which necessitated the accused to prefer this revision.7.

The learned counsel Mr.A.K.Mylsamy appearing for there vision petitioner has not touched the merits of the case, but entire arguments of the learned counsel for the revision petitioner would revolve around the subsequent amendment in the Income Tax Act in respect of Section 276DD which is the penal section for violation of the provision of Section 269SS of the Income Tax Act, 1961. Section 276DD of the Income Tax Act, 1961was omitted by Direct Tax Laws (Amendment) Act, 1987 which came into force with effect from 1.4.1989. Relying on the ratio of the Honourbale Apex Court in AIR 2002 SC 3126 (M/s.GeneralFinance Co. and anther Vs. Assistant Commission of Income Tax),the learned counsel for the revision petitioner would contend that after the omission of Section 276DD from the Income Tax Act,1961 by Direct Tax Laws (Amendment) Act, 1987, a prosecution cannot be launched or continued for the violation of the provisions under Section 269SS of the Income Tax Act.

The short facts of the above cited case are that: "The appellants viz. General Finance Company and another had received deposits from one Amar Singh, Gurdev Singh and Hardev Singh on different dates in the year 1985 and the said fact was disclosed in the income tax returns filed by them for the assessment year 1986-87. The Income Tax department initiated prosecution against the appellants for an offence under Section269SS of the Income Tax Act, 1961, which provides that no person shall take or accept any other person any loan or deposit otherwise than by the account payee cheque or account payee bank draft which exceedsRs.10,000/- (now Rs.20,000/-). Section 276DD is the penal section for the violation of the provision under Section 269SS of the Income Tax Act (herein after referred as the "Act"). Section 276DD has been omitted from the Act by the Direct Tax Laws (Amendment) Act,1987, with effect from 1.4.1989.

A complaint was filed under Section 276DD of the Act before the Chief https://hcservices.ecourts.gov.in/hcservices/ Judicial Magistrate, Sangrur, on 31.3.1989. A petition under Section 482 of the Cr.P.C., and article 227 of the Constitution was filed for a direction to quash the proceedings for prosecution under Section 276DD of the Act. The High Court took a view that at the time of initiation of the prosecution by the department the provision was in force ie., during the accounting year1986-87 and that the said provision under Section 276DDof the Act was omitted from the statute book only from1.4.1989 and accordingly dismissed the writ petition. Aggrieved by the orders of the High Court, the appellants preferred an appeal before the HonourableApex Court by Special Leave. The contention putforwardby the appellants before the Honourable Apex Court was that the offence, if at all, had been committed in the year 1985 prosecution could not be continued nor could the punishment be imposed under Section 276DD of the Act after it was omitted on and from 1.4.1989.After hearing the learned counsel appearing on both sides and also referring two earlier decisions rendered by the Constitution Benches of the HonourableApex Court in AIR 1970 SC 494 (Messrs RayalaCorporation (P) Ltd. and M.R.Pratap Vs.

Director of Enforcement, New Delhi), and AIR 2000 SC 811 (KolhapurCanesugar Works Ltd. Vs. Union of India), wherein in has been held that Section 6 of the General Clauses Actapplies to a repealed law and not to omission, ultimately rendered the findings to the effect that Section 276DD of the Act stood omitted from the Act, but not repealed and hence the prosecution could not be launched or continued by invoking Section 6 of the General Clauses Act after its omission. The relevant observation noteworthy in the above said ratiodecidendi for the purpose of deciding this revision runs as follows:-"Though we find the submissions of the learned counsel to be forceful, we are constrained to follow the two decisions of the constitution Benches of this Court in Messrs Rayala Corporation (P) Ltd case (supra)and Kolhapur Canesugar Works Ltd. case (supra). Thisview has held the field for over three decades and reiterated even as late as two years ago.

Non-compliance with Section 269SS of the Act attracted prosecution as well as penalty. Omission of the provision regarding prosecution will not affect the levy of penalty. The advantage arising out of application of the ratio of the two decisions resulting in prosecution in cases of non-compliance with Section269SS of the Act is only transitional affecting a few https://hcservices.ecourts.gov.in/hcservices/ cases arising prior to 1.4.1989. Such cases may be few and far between. Hence, we find this is not anappropriate case for reference to the larger Bench. Net result of this discussion is that the view taken by the High Court is not consistent with what has been stated by this Court in the two decisions aforesaid and the principle underlying Section 6 of the General Clauses Act as saving the right to initiate proceedings for liabilities incurred during the currency of the Act will not apply to omission of aprovision in an Act but only to repeal, omission being different from repeal as held in the aforesaid decisions.

In the Income Tax Act, Section 276DD stood omitted from the act but not repealed and hence aprosecution could not have been launched or continued by invoking Section 6 of the General Clauses Act after its omission. "8. The learned counsel appearing for the revision petitioner relying on the above observation would content that the initiation of proceedings under Section 269SS of the Act against the revision petitioner itself is not maintainable after the omission of Section 276DD of the Act as per the Direct Tax Laws(Amendment) Act with effect from 1.4.1989. The learned counsel would attract the attention of this Court to the penal section provided under Section 271D of the Act which was also incorporated into the statute book by Direct Tax Laws (Amendment)Act, 1987 with effect from 1.4.1989 i.e., on the same day on which section 276DD of the Act was directed to be omitted by the Direct Tax Laws (Amendment) Act, 1987.

Section 271D of the Actgives enormous powers to the Commissioner (Joint) of the IncomeTax to levy penalty against any person who contravenes the provisions of Section 269SS of the Act. After the induction of the above said provision of law, the Commissioner of Income Taxis empowered to levy penalty on a person who violates the provision of Section 269SS of the Act. Relying on the above said provision of law ie., Section 271D of the Act, the learned counsel for the revision petitioner would contend that the judgment of the Courts below are liable to be set aside and matter may be remanded to the Commissioner of the Income Tax, who had initiated the proceedings before the Court of law against the accused. https://hcservices.ecourts.gov.in/hcservices/

The learned counsel would further contend that the prosecution initiated by the Complainant/Commissioner of IncomeTax itself is null and void in lieu of the omission of Section276DD of the Act from the statute book. This contention of the learned counsel for the revision petitioner, in my view, cannot be sustainable because even a criminal proceedings were pending before the trial Court in E.O.C.C.No.207 of 1986 on the file of the Additional Chief Metropolitan Magistrate EO-II, Egmore, the Honourable Apex Court has passed an order in Crl.M.P.5557 of 1992in Crl.A.No.601 of 1992 directing the trial Court to the effect that the substantive sentence shall not be given effect to until further orders. There was no direction given by the HonourableApex Court to stay the proceedings in E.O.C.C.No.207 of 1986before the trial Court. In fact Crl.A.No.601 of 1992 was preferred by the Assistant Director of Inspection (Investigation)of the Income Tax Department against the order passed by the learned judge of this Court in a petition filed by the accused under Article 227 of the Constitution of India challenging the validity of Section 269SS and 271D of the Income Tax Act, 1961,as ultra vires and unconstitutional.

After setting aside the findings rendered by the trialCourt, the Honourable Apex Court in Crl.A.No.601 of 1992 has held that Section 269SS, 271D and 276DD of the Act are constitutional and cannot be said that they are draconian or exproprietory in nature. Under such circumstances, it cannot be said that the initiation of proceedings by the complainant/Commissioner of Income Tax department in E.O.C.C.No.207 of 1986 after the omission of Section 276DD of the Act is invalid or nonest inlaw because both the initiation as well as the continuation are prior to 1.4.1989 on which date section 276DD of the Act wasommitted by way of Direct Tax Laws (Amendment) Act.11. Now the point to the considered is whether the imposition of sentence by the Court below can be sustained. Theaccused was convicted by the Court below to undergo RI for 2years and a fine of Rs.4,65,000/- even after the amendment and after the omission of Section 276DD of the Act, as per the penal provision inducted thereafter under Section 271D of the Act, the Income Tax Commissioner can levy only penalty and the person who violates the provisions of Section 269SS of the Act, cannot be sentenced to any imprisonment. Under such circumstances, I am of the view that the penalty levied by the Courts below by way offine should sustain and only the sentence of 2 years RI alone isto be set aside in lieu of march of law on this subject. https://hcservices.ecourts.gov.in/hcservices/