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2005 DIGILAW 520 (MP)

Union of India v. Kalpana Dal Mills

2005-04-13

A.K.AWASTHY

body2005
Judgment ( 1. ) THE appellant/complainant had filed the appeal under Section 378 of the Cr. PC for setting aside the acquittal in complaint under Section 276 (E)/278 (B) of the Income Tax Act, 1961 vide judgment and order dated 23-8-1993 by Additional Chief Judicial Magistrate, Indore in Criminal Case No. 5/90. ( 2. ) THE case of the complainant is that Shri N. K. Vijayvargiya was posted as Income Tax Officer of Ward No. 2 (5) at Indore and he was the public servant and he has filed the complaint after taking the sanction under Section 279 of the Income Tax Act on 22-1-1990. That accused No. 1 M/s. Kalpana Dal Mill was registered partnership firm and accused Nos. 2 to 5 are the partners of the firm and they were responsible to the firm and incharge of conducting the business of the firm. That firm M/s. Kalpana Dal Mill has given the amount of Rs. 30, ()00/- in cash on 26-11-83 to Surendra Kumar and Tarun Kumar Modi. That on 9-12-83 the amount of Rs. 31,000/- that on 11-11-83 amount of Rs. 37,000/- and on 9-12-83 the amount of Rs. 26,000/-was paid to M/s SAT Modi. That according to the provisions of Section 269 (T) of the Income Tax Act it was incumbent on the firm M/s Kalpana Dal Mills to make the payment either by the account payee cheque or by the account payee bank draft. That on account of the infringement of the provisions of the Income Tax Act the accused persons are liable to be convicted for the offence punishable under Section 276 (E) of the Income Tax Act. ( 3. ) THE accused persons have abjured the guilt and pleaded that they have not committed the violation of the provisions of Section 269 (T) of the Income Tax Act. That the loan was not taken for the limited period and it was agreed that the amount would be paid or returned after the notice. The accused has examined Surendra Kumar in defence. ( 4. ) THE learned Trial Court has held that in view of the transaction by the accused it was not necessary to make the payment by account payee cheque or by the bank draft and as such, the provisions of Section 269 (T) were not violated and the accused were acquitted. ( 5. ( 4. ) THE learned Trial Court has held that in view of the transaction by the accused it was not necessary to make the payment by account payee cheque or by the bank draft and as such, the provisions of Section 269 (T) were not violated and the accused were acquitted. ( 5. ) THE appellant Union of India prayed for the grant of leave to appeal. The leave to appeal was provided by the Court thereafter the appellant remained absent. In the appeal memo it was alleged by the appellant that in the assessment year 1985-86 the accused persons made the cash payment of Rs. 30,000/- on 26-11-83, of Rs. 31,000/- on 9-12-83, of Rs. 37,000/- on 11-11-1983 and Rs. 26,000/- on 9-12-83 in the contravention of the provisions of the Income Tax Act and the satisfactory reply of the show-cause notice was not given and as such, the learned Trial Court has erred in acquitting the accused. That the appeal be allowed and respondent accused be convicted under Section 269 (T) of the Income Tax Act. ( 6. ) THE learned Counsel for the respondent has vehemently argued that the complaint against the accused persons was field on 13-2-90, i. e. , after 1-4-89. That the provisions of Section 276 (E) of the Income Tax Act was removed, after 1-4-89 from the statute by the Direct Tax Loans (Amendment Act, 1987) and as such, the prosecution and the conviction of the accused under Section 269 (T) of the Income Tax Act was not tenable. ( 7. ) THE learned Counsel for the appellant has relied on the case of Shewaram and Sons and Ors. v. Union of India, 2003 Income Tax Reporter page 656, wherein the view expressed is that on account of the omission of Section 276 (E) of the Income Tax Act the prosecution for the punishment under Section 269 (T) was not permissible. The similar view was expressed in case of Parmanand Das Brij Bhushan and Ors. v. Union of India and Anr. , 2001 Income Tax Reporter 328 (Vol. 249 ). It is categorically held in the aforesaid cases that where the company made the payment in cash in violation of the provisions of Section 269 (T) of the Income Tax the complaint after 1 -4-89 is not maintainable. v. Union of India and Anr. , 2001 Income Tax Reporter 328 (Vol. 249 ). It is categorically held in the aforesaid cases that where the company made the payment in cash in violation of the provisions of Section 269 (T) of the Income Tax the complaint after 1 -4-89 is not maintainable. However, the appellant has failed to point out the gross mistake in the impugned judgment. In view of the facts and law highlighted above, the appeal deserves to be dismissed. ( 8. ) APPEAL is without any merit and it is, hereby, dismissed.