Op/6081/2001 Of Upasana Hospital& Nursing Home v. Income Tax Officer,B.ward,Trivandrum

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 OP.No. 6081 of 2001(Y) ------------------------------ PETITIONER(S): ----------------------- 1. UPASANA HOSPITAL AND NURSING HOME, QUILON, REPRESENTED BY ITS MANAGING PARTNER DR. P.N.BHASKARAN. QUILON, REPRESENTED BY ITS MANAGING PARTNER DR. P.N.BHASKARAN. 2. DR. P.N.BHASKARAN, MANAGING PARTNER, UPASANA HOSPITAL AND NURSING HOME, QUILON. UPASANA HOSPITAL AND NURSING HOME, QUILON. BY ADV. SRI.C.KOCHUNNY NAIR SRI.DALE P.KURIEN RESPONDENT(S): ------------------------- 1. THE INCOME-TAX OFFICER, B-WARD, THIRUVANANTHAPURAM. THIRUVANANTHAPURAM. 2. THE CENTRAL BOARD OF DIRECT TAXES (CBDT) NEW DELHI. NEW DELHI. 3. THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, THIRUVANANTHAPURAM. REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, THIRUVANANTHAPURAM. ADV. SRI.GEORGE K. GEORGE, SC FOR IT FOR R1 & 2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 6081 of 2001(Y) APPENDIX PETITIONERS' EXHIBITS: EXT.P1 - TRUE COPY OF THE COMPLAINT, C.C. NO. 57/88 FILED BY THE RESPONDENTNO.1 BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT (E.O),ERNAKULAM FOR THE ASSESSMENT YEAR 1983-84. EXT.P2 - TRUE COPY OF THE ORDER DATED 26.3.1991 PASSED BY THE CIT (APPEALS)TRIVANDRUM, FOR THE ASSESSMENT YEAR 1983-84. EXT.P3 - TRUE COPY OF THE COMMON TRIBUNAL ORDER DATED 13.2.1992 IN THEI.T.A.NOS. 454 AND 455 (COCH)/1991 FOR THE ASSESSMENT YEARS 1983-84 AND 1984-85PASSED BY THE INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH. EXT.P4 - TRUE COPY OF THE HEARING NOTE FILED BY THE COUNSEL FOR THERESPONDENT IN C.C. NO. 57/88 BEFORE THE HON'BLE ADDITIONAL CHIEF JUDICIALMAGISTRATE COURT(E.O.), ERNAKULAM. EXT.P5 - TRUE COPY OF THE JUDGMENT IN CRL. MISC. NO. 533/92 PASSED BY THEHON'BLE SUPREME COURT OF INDIA REPORTED IN (1993) 113 TAXATION 203(SC)DATED 22.10.1992. // TRUE COPY // PA TO JUDGE rhs S.SIRI JAGAN, J - - - - - - - - - - - - - - - - - - - - - - - O.P.No.6081 of 2001 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of January, 2009 J U D G M E N T In this original petition the challenge is against prosecutionproceedings initiated by the Income Tax Department against thepetitioners in respect of assessments for the assessment years 1983-1984, 1984-1985, 1985-1986. Three allegations are made against thepetitioner. The first is of willful attempt to evade tax by not filing returnsfor the said assessment years, which is stated to be an offence underSection 276C of the Income Tax Act. The second is failure to filereturns which is an offence under Section 276CC. The third is that thepetitioners made a false statement in the verification part of the returnfiled belatedly. It is stated to be an offence under Section 277. Thecontention of the petitioner is that, in respect of the same allegations,penalty proceedings were initiated by the department which were setaside in appeal by the Commissioner of Income Tax (Appeals) whichwas confirmed by the Tribunal. According to the petitioners, in view ofthe decision of the Supreme Court in K.C. Builders and Another vAssistant Commissioner of Income-Tax [(2004) 265 ITR 562(SC)] and decision of this Court in Edayanal Constructions and Another v and decision of this Court in Edayanal Constructions and Another v Income-Tax Officer and Another [(2007) 288 ITR 134 (Ker)],oncepenalty proceedings are set aside, no prosecution would lie. I am ofopinion that these are all matters which the petitioners should bring tothe attention of the court where prosecution proceedings are pending,which court is perfectly competent to appreciate the applicability ofthose decisions to the petitioners' case. Therefore, without prejudice tothe right of the petitioners to raise all these contentions before the courtwhere prosecution proceedings are pending, this writ petition isdisposed of. In case, application for exemption from personalappearance is filed, the court trying the offences shall exempt the 2[nd]petitioner form personal appearance and decide the matter permittingthe petitioner to be represented by advocate. S.SIRI JAGAN, JUDGE rhs