sanction order for prosecution
Querist :
Anonymous
(Querist) 21 January 2011
This query is : Resolved
An income tax officer lodged a complaint u/s.420 IPC with the PSI against an assessee for filing two returns of income for the same assessment year at two different IT offices and obtaining refunds fraudulently mentioning "The prior approval of the Chief Commissioner of Income Tax has been obtained" Is he correct to lodge the complaint to the PSI? Or that the same should have been filed to the court? A certified copy of the Sanction order was applied for with due legal fees, it being a public document,not supplied. Should the sanction order be enclosed to the complaint petition or that it may be obtained at time of framing the charge. Is sanction order at all necessary to lodge a complaint under the IPC offenses? Can an IT officer be a complainant for offenses not falling under the IT Act?Does the above said offense fall out of the IT Act that it has to seek the help of IPC..Kindly advise
Querist :
Anonymous
(Querist) 21 January 2011
Should the procedure for prosecution for any offense related to Income Tax be as per the Income Tax Act or that the only offenses mentioned u/s 279 be dealt with as per the IT Act.. Does filing of two returns of income for the same asessment year and obtaining two refunds..amount to an offense not falling within the IT Act
Vineet
(Expert) 24 January 2011
In my opinion it is a criminal offence with intend to cheating, fraud and obtain wrongful gain. The case falls under criminal law and outside perview of Income Tax Act which deals with offenses related to violation of provisions of Income Tax Act.
Therefore as such no prior sanction is required in this matter u/s 279 of the Act and the approval of CCIT may be as per departmental administrative mechanism but certianly not a pre requisite of law. The complaint with police u/s 420 of IPC is valid.
Even in cases of refund frauds investigated by CBI, the FIR is registered under varuious sections of IPC and Prevention of Cprruption Act and not the Income TAx Act.
Querist :
Anonymous
(Querist) 07 April 2011
Sir,
Where offences fall both under the IT Act and IPC. It is the IT Act which overrides the IPC, it being a special Act.So, should the procedure to be followed for prosecution not be as per the IT Act,i.e, filing of the complaint to the Court as prescribed by sec.5 of IPC.Kindly advise,sir
Querist :
Anonymous
(Querist) 25 May 2011
Dear Vineet Sir,
The salaried assessee being under the impression that the return for the AY 2007-08 not having been filed, filed the return again with another ITO.Both returns were not enclosed with proofs of deductions claimed in the returns.The AO without applying sec.143(i)of prima facie adjustments issued refunds in both cases. Later on in one return he received notice u/s.154 and later on 142(1) and 147. The addresses were provided by the ITOs for filing the returns to bring the returns in their own jurisdiction. It is the ITO who misguided the assessee that a refund would be given legally under his guidance. Feeling the complexity of the case, the assessee repaid both refunds. Thereafter, the ITO lodged a complaint under said provisions of IPC.The assessee is made A1, A person who helped him file the returns has been made A2 and A2's father a tax consultant for the last 40yrs with a clean background and no way linked to this case has been made A3.A3 is 75yrs old with a good reputation in the local social activities. The assessee doesn't even know A3. The concept of PAN was intentionally overlooked by the ITO before issuing the refund. Lest antecedents could easily be made out from the PAN, avoiding all these unnecessary complications.It's more that one full year and the police have not filed the charge sheet.Most of the allegations of cheating, fabrication of documents are false and with an ulterior motive to cause dis-reputation to A3.Since filing of the FIR A3 has not even been discharged from the offence. April 2010 till now,was time not enough either to file charge sheet/delete the innocent from the accused list. The said refunds and the intimations were handed over to the assessee/deposited into the assessee's bank account by the IT staff only. The addressee has given astatement that he knows neither A1 nor A2 and in place has mentioned an IT staff who has used his address. Certified copies of the statements recorded u/s.131 were applied for and the iTO refused the same with a statement that the JUDICIAL police investigation is going on and the originals need to be presented before the Hon'ble court when called for. If the police files charge sheet, truth would be revealed in the court and the Income tax dept's misappropriation would be revealed that the charge sheet is intentionally not filed. Now, after more than a year..the ITO for the same offence has filed a complaint u/s.277 & 278 of the IT Act directly to the Court with same grounds. The procedure of bail and unnecessary harassment would repeat. There were 21 of same cases where ITO had misguided assessees and issued refunds,all returns filed on the same day and within a week's time refunds issued on a single day in all cases. In one case the ITO can make an excuse that it was through over sight, but if it's 21 cases! For the same cases when prosecution has already been launched under one law/Act and even before it has reached the beginning stage of hearing in the court another prosecution is launched under a different law/Act. His second prosecution under the IT provisions clearly proves that Police has no role to play in tax matters as initiation of prosecution is only on reaching finality that it is a fit case for prosecution(again a supreme court verdict)and the complaint cannot be lodged to the police. A certified copy of the Chief Commissioner's sanction order also was applied for and there was a silence from the IT Dept..The assessee no doubt had filed two returns with wrong claims, but was misguided by the Dept itself and once he realized the facts, he in good faith repaid the refunds. This basically being a SALARIED case, so much of legality, technicality, harassment could easily have been avoided as this case involves hardly any application of mind for assessment. Now, the assessee is continuously harassed with notice u/s.271(1)c, calls from the police, attendance before the police and above all these fresh FIR for the same offence. No where is the mention of the IT staff involvement and innocents and most unconcerned are dragged into the case as accused.If it falls under the criminal law, why prosecution under the IT Act!Kindly advise.
Regards,
Vishwanath
