K.V. Produce vs Commissioner of Income Tax

Sankaran Nair, J.—Petitioners seek to quash Ext. P4 order of first respondent-Commissioner rejecting their request for amnesty. Directions to respondents to accept a return filed by petitioners dated 21-3-1987 and to withdraw C.C. No. 62 of 1987 on the file of the Addl. Chief Judicial Magistrate, Ernakulam, are also sought. Petitioners returned an income for Rs. 2,64,090 for the assessment year 1983-84. An assessment, Ext. R2 dated 7-1-1986 was made, rejecting the return filed and adding a suppressed income of Rs. 1,47,888. Petitioners appealed against that order unsuccessfully. The appeal was rejected on 5-9-1986 by Ext. R2(a). Thereafter, a second appeal was filed before the Tribunal.

While so, petitioners filed another return dated 21-3-1987 purportedly in terms of Ext. P1 circular dated 13-2-1986 and withdrew the appeal filed by them before the Tribunal.

Petitioners submit that the scheme covers past years also, and that they had acted on a promise contained in the circular. The revenue cannot go back on the promise or initiate penal proceedings thereafter, state petitioners. Question Nos. 9, 12, 19 and 28 and the answers thereto in Ext. R 2(b) are relied on by petitioners to contend that the benefits under the scheme are available to them. They submit that the circular has the force of law and, thus, the penal provisions of the income tax Act, 1961 (''the Act'') cannot be invoked against the assessees covered by the scheme and relying on the decision in CIT v. Punalur Paper Mills [1987] (2) KLT 194, the counsel for petitioners would submit that the circular ''supplants the law, instead of supplementing it''.

According to respondents, the scheme will not apply to the case of petitioners as there was no disclosure of income by them. The income assessed under Ext. R2 was shown by petitioners as the income disclosed under the scheme. This is nothing but an attempt to get the benefit of amnesty, without qualifying for it, submit respondents. The so-called disclosure was made fourteen months after Ext. R2 assessment on 7-1-1986, and after the first appeal was rejected. Referring to Ground (E) of the writ petition, respondents submit that even the time for disclosure was over on 30-3-1986, almost a year before the so-called disclosure was made. They submit that a circular, derogatory to the statute or supplanting it, cannot be issued as that will be ultra vires.

The prayer for directing withdrawal of C.C. No. 62 of 1987, cannot be granted. There is no provision in the Code of Criminal Procedure, 1898 or in any other law, for withdrawing a private complaint. May be, there are cases where the Court can drop it, as indicated in K.M. Mathew v. State of Kerala [1992] (1) KLT 1. An accused person has no right to seek withdrawal of a criminal complaint. For the same reason, a direction cannot be issued to restrain respondents from proceeding with the criminal complaint. The criminal Court is in seisin of the case, and it is up to it to deal with the case in accordance with law. In a situation where facts are in dispute, the Court will not invoke its extra ordinary jurisdiction under Article 226 of the Constitution to adjudicate on disputed questions of fact. As observed by the Supreme Court in The Delhi Development Authority, New Delhi Vs. Lila D. Bhagat and Others, and Bishambhar Dayal Chandra Mohan and Others Vs. State of Uttar Pradesh and Others, , primarily and properly, it is for the criminal Court which has taken cognizance of the complaint, to come to appropriate conclusions.

The surviving question is whether the circular Ext. P1 governs the case. The counsel for petitioners relied on the decisions in CIT v. India Sea Foods [1979] KLT 525 (FB) and Punalur Paper Mills'' case (supra) to contend that circulars have not only force of law, but also that they supplant law. Though circulars issued u/s 119 of the Act may have the force of law, they may not override the law itself. Concepts like ultra vires would come into play if a notification or a rule runs derogatory to the parent law. However, I consider it unnecessary to examine that question for purposes of this case. The basic question is whether the circular governs the case. Petitioners would say it would and respondents would say it would not. The amnesty period came to an end on 31 -3-1986 (Ground E). As assessment had been made prior to that on 7-1 -1986 and the so-called revised return was filed only on 21-3-1987, fourteen months after the original return was filed and twelve months after the expiry of the period of amnesty. That apart, there is no disclosure involved. It was only the income assessed under Ext. R2 that was ''returned'' as the revised income. What is in existence and is known is not disclosed or revealed by rewriting it or repeating it in any sense of the term. The attempt of petitioners is no more than an adventure to sail into the harbour of amnesty, away from the troubled waters in which they found themselves. They disclosed nothing, and nothing new or different was revealed. Answer to question No. 19 in Ext. R2(b) states that if the ITO had already found material to show that there had been concealment, the question of applying the Amnesty Scheme does not arise. On the facts and in the circumstances of the case, the scheme does not apply and the contentions in that behalf have only to be rejected. Original petition is, accordingly, dismissed. No costs.