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It is plain that if the argument of the Additional Solicitor General is accepted, the result would be that a complaint like the present can be made by any person and if the offence alleged is proved, the accused would be liable to receive hi her penalty awardable under the first paragraph of section 193, I.P.C. without... |
Could it have been the intention of the legislature in making the offence committed during the course of a proceeding before an Income tax Officer more serious without affording a corresponding safeguard in respect of the complaints which can be made in that behalf? We are inclined to hold that the answer to this quest... |
That is why after careful consideration. Ratio |
we have come to the conclusion that the view taken by the Bombay High Court should be upheld though for different reasons. Ratio |
Section 37(4) ,of the Act makes the proceedings before the Income tax Officer judicial proceedings under section 193 I.P.C. and these judicial proceedings must be treated as proceedings in any Court for the purpose of section 195(1)(b), Cr.P.C. That. Ratio |
we think, would really carry out the intention of the legislature in enacting section 37(4) of the Act. Ratio |
In this connection there is another consideration which has weighed in our minds. Ratio |
We have already noticed that section 37(4) makes the proceedings before the Income tax Officer judicial proceedings within the meaning of section 228 I.P.C. Ratio |
When we turn to the latter section, we notice that the said section deals with the offence of intentionally causing insult or interruption to public servant sitting in judicial proceed ing. Ratio |
It is obvious that the offence with which section 228 deals is an offence committed against a public servant sitting in a judicial proceeding. Ratio |
This section is one of the sections mentioned in section 195(1)(b), Cr.P.C., and so any complaint in 712 respect of the offence alleged to have been committed under section 228, I.P.C. has to be made by the Court in question. Ratio |
There can be little doubt that if a person offers an insult to a public servant sitting in a judicial proceeding, or causes. Ratio |
interruption to him while he is so sitting at any stage of the judicial proceeding, the complaint has to proceed from the public servant himself; that is the effect of section 195(1)(b) Cr. Ratio |
Before section 37(4) of the Act was enacted, an insult given to an Income tax Officer or interruption caused to his proceedings whilst he was conducting his proceedings, would not have amounted to an offence under section 228, I.P.C. Section 37(4) makes a proceeding before the Income tax Officer a proceeding under sect... |
Could it have been intended by the legislature in enacting section 37(4) that whereas an insult offered to a public servant acting judicially, or interruption caused in his proceedings would normally be cognizable only on the complaint of the public servant him self, the same offence, if committed in respect of the pro... |
The anomaly which would result if the construction suggested by the Additional Solicitor General is accepted, is, in our opinion, so glaring that the alternative contention urged by Mr. Desai and upheld by the Bombay High Court which avoids the said anomaly appears to be more reasonable and more consistent with the tru... |
That is why we are not prepared to accept the appellant 's argument that the Bombay High Court was in error in dismissing his complaint on the ground that the condition precedent prescribed by section 195(1) (b) Cr.P.C. had not been complied with as no complaint had been filed by the Income tax Officer. Ratio |
It appears that In re: Punam Chand Maneklal(1) the Full Bench of the Bombay High Court had taken the view that an Income tax Collector is a Revenue Court within the meaning of that term as used in clauses (b) and (c) of section 195, Cr. P C., 1898. PRE |
Scott, C. J. who spoke for the Full Bench, observed that it could not be contended that the Income tax Collector was a Civil or Criminal Court, and so, he addressed himself (1) I.L.R. 713 to the narrow question as to whether he was a Revenue Court. PRE |
Dealing with the question on that footing, he examined the functions of the Income tax Collector under Act 11 of 1886, and held that he was a Revenue Court. PRE |
He rejected the contention that he could be treated as a Registrar or Sub Registrar under the Registration Act, and so, he found no difficulty in coming to the conclusion that he was a Revenue Court. PRE |
The Bombay High Court in the present case has substantially based itself on this decision in reversing the conclusion of the Presidency Magistrate and directing that the complaint filed by the appellant should be dismissed. Ratio |
It is unnecessary to consider whether the view taken by the Full Bench in re: Punam Chand Maneklal(1) is right, because the relevant provisions of the Income tax Act have been subsequently modified in 1922 and different considerations have now assumed importance. Ratio |
It is no longer possible to hold that the Income tax Officer is a Revenue Court, and, indeed, that has not been the contention raised before us by Mr. Desai. Ratio |
In the result, the appeal fails and is dismissed. RPC |
DAS GUPTA, J. Is an Income tax Officer under the Indian Income tax Act, 1922, a court within the meaning of cl.(b) in sub section (1) of section 195 of the Code of Criminal Procedure? Ratio |
That is the short but difficult question that arises in this appeal against a decision of the High Court of Judicature at Bombay. Ratio |
On November 24, 1949, the appellant filed a complaint in the Court of the Presidency Magistrate, Bombay, alleging that when the respondent Mulji Manilal Kamdar was examined on commission by the Income tax Officer, Jamnagar Circle, Jamnagar, he gave answers which were false to his knowledge. FAC |
He prayed for the issue of process against the said Mulji Manilal Kamdar, so that he might be dealt with according to law. FAC |
An objection was raised by the accused that in the absence of a complaint by the Income tax Officer before whom the false statement was alleged to have been made the Magistrate was debarred from taking cognizance of the case. FAC |
This contention was based on a submission that the Income tax Officer was a court within the meaning of section 195(1)(b). FAC |
This objection was rejected by the Presidency Magistrate. FAC |
(1) I.L.R. 38 Boni.714 The High Court of Bombay was moved against the Presidency Magistrate 's order. FAC |
But considering itself bound by a Full Bench decision of the Court in in re: Punainchand Manieklal(1) and the later decision in State vs Nemchand Peshvir (2) the High Court held that an income tax Officer when holding proceedings under section 23 of the Income tax Act, 1922 is a Revenue Court within the meaning of cl. ... |
(b) in sub section (1) of section 195 of the Code of Criminal Procedure. Ratio |
The correctness of the High Court 's view is challenged before us by the complainant on the strength of a certificate granted by the High Court finder article 134(1) (c) of the Constitution. Ratio |
Section 195(1)(b) is one of the group of sections in the Code of Criminal Procedure which have laid down exceptions to the general rule of criminal law that criminal proceedings can be instituted in a court by any person. Ratio |
To this rule section 195 along with sections 196, 196A, 197, 197A, 198, 198A, and 199 provide exceptions. Ratio |
Section 195 mentions in its first sub section a number of offences of which no court shall take cognizance except on the complaint in writing of the persons as indicated. Ratio |
Three classes of offences are dealt with in three cls.(a), (b) and (c) of this sub section. Ratio |
Section 195(1)(a) deals with offences punishable under sections 172 to 188 of the Indian Penal Code and provides that no Court shall take cognizance of any of these except on the complaint in writing "of the public servant concerned or of some other public servant to whom he is subordinate." STA |
Section 195(1)(b) deals with offences punishable under sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228 and provides that when any such offence is alleged to have been committed in or in relation to any proceeding in any court, no court shall take cognizance of it except on the complaint... |
Section 195(1)(c) deals with offences punishable under sections 463, 471, 475 and 476 and provides that when any such offence is alleged to have been committed by a party to any proceeding in any court in respect of any document produced (1) I.L.R. (2) 715 or given in evidence in such proceeding, no court shall take co... |
The second sub section of section 195 runs thus "In clauses (b) and (c) of sub section (1), the term "court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar, or SubRegistrar, under the Indian Registration Act, 1877. STA |
" In this appeal we are concerned directly with cl.(b) of section 195(1). Ratio |
The appellant 's complaint before the Magistrate alleged the commission of an offence under section 193 of the Indian Penal Code in the course of the examination on oath by the Income taxx Officer, Ward A, Jamnagar Circle, Jamnagar. Ratio |
The examination itself took place in relation to assessment proceedings against the complainant for the years 1949 50, and 1950 51. FAC |
If the Income tax Officer is a Court it necessarily follows that the Magistrate was not entitled to take cognizance of this offence except on the complaint of the Income tax Officer. FAC |
That is how the question whether the Income tax Officer is a Court or not falls to be considered. FAC |
Section 5 of the Income tax Act, 1922, mentions six classes of Income tax Authorities for ;the purposes of the Act, The primary function of an Income tax Officer is the assessment of income that is chargeable to tax under section 3 of the Act and the determination of the tax payable on it. STA |
He has to perform other functions under the Act that are subsidiary and ancillary to this main function. Ratio |
Under section 5 (7) the Income tax Officers are subordinate to the Director of Inspection, the Commissioner of Income tax and the Inspecting Assistant Commissioner of Income tax within whose jurisdiction they perform their functions. STA |
Under section 5(8) they have to observe and follow the orders, instructions and directions of the Central Board of Revenue. STA |
Chapter III of the Act in its several sections state what heads of income profits and gains shall be chargeable to income tax and indicates the duties which the Income tax Officer 716 has to perform for the purpose of his main function of assessing the chargeable income. STA |
For instance, deductions under section 7 (2) (iia) in respect of conveyance owned by the assessee or used by him for the purpose of his employment"shall be such sum as the Income tax Officer may estimate,. . "The allowances permissible under section 10(2)(i) "shall be such sum as the Income tax Officer may determine"; ... |
Again, the allowances mentioned in cl.(a) and cl.(b) of section 10(4) (a) cannot be made "if in the opinion of the Income tax Officer any such allowance is excessive or unreasonable. STA |
" The proviso to section 10(5) requires the Income tax Officer to satisfy himself in the cases dealt with there whether the main purpose of the transfer of assets was the reduction of liability to income tax and provides that where he is so satisfied the actual cost of the assets shall be such amount as the Income tax ... |
Other sections showing the different matters in which the Income tax Officer has to be satisfied or to form an opinion for the purpose of assessment are sections 12(a), 13 and 17. Ratio |
Chapter IV of the Act,which lays down the proce dure to be followed in making the assessment, imposes inter alia the duty of calling for returns of income (section 22); of making assessment of the Income and to determine the sum payable by the assessee (section 23); the power to assess Companies to super tax (section 2... |
It is obvious however that for carrying out these several functions properly it is necessary for the Income tax Officer to examine documents and persons. Ratio |
Power for this purpose are conferred on the Income tax Officer (and certain other Income tax Authorities) in section 37 of the Act. STA |
The first subsection of section 3 7 runs thus : "The Income tax Officer, Appellate Assistant Commissioner and Appellate Tribunal shall, for the purposes of this Act, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908) 717 when trying a suit in respect of the following matte... |
(b) enforcing the attendance of any person, including any officer of a banking company, and examining him on oath, (c) compelling the production of books of account and other documents; and (d) issuing summons. STA |
The second subsection empowers any Income tax Officer specially authorised by the Commissioner to enter and search any building and seize books of account and other documents. STA |
Under the third sub section the Income tax Officer may impound or retain the books of account and other documents after following certain procedure. STA |
The fourth sub section of this section which does not confer any powers but has been relied on strongly by the respondent will be dealt with in full detail later in this judgment. STA |
From the brief summary of the Income tax Officer 's functions given above it is clear that he is a part and parcel of the executive organ of the State. Ratio |
The fact that for carrying out some of these executive functions he will have the powers as are vested in a court under the Code of Civil Procedure has not the effect of converting him into a limb ,of the judicial organ. Ratio |
It has been held that he is a quasi judicial authority. Ratio |
That is not sufficient however to make him a court. Ratio |
Before we can call him a court, he must be shown to be a part of the judicial organ of the State. Ratio |
Leaving out for later consideration the effect of section 37(4) it is clear that an Income tax Officer is not a court. Ratio |
We have not thought it necessary to refer to the numerous decisions of the High Courts in India, of this Court or of the Privy Council in which the question of what is a court has been considered. Ratio |
We have considered this unnecessary in view especially of the fact that most of these were noticed in a recent decision of this Court in Jagannath 718 Prosad vs State of Uttar Pradesh(1) where the question whether a Sales Tax Officer was a court or not within the meaning of section 195(2) of the Criminal Procedure Code... |
This Court held that the Sales Tax Officer is not a Court within the meaning of that section. PRE |
All the reasons set out in this judgment which Kapur J. delivered for the Court are applicable to the case of the Income tax Officer and if the reasoning in that case is taken to be correct, as it must be, ;the Income tax Officer also must be, held to be not a court unless any different conclusion is. PRE |
justified from the provisions of section 37(4) of the Act. Ratio |
It will not be out of place to mention here what them Constitution Bench of this Court said in Jaswant Sugar Mills vs Lakshmi Chand(2) as regards the nature of the functions of Income tax Officers. PRE |
The question for the court 's decision in that case was whether a Conciliation Officer under cl. 29 of the Government Order under sections 3 and 8 of the U.P. was a "Tribunal" within the meaning of article 136 of the Constitution and the Court held that it was not such a tribunal. PRE |
As illustrations of other authorities whose primary function is administrative even though they have the duty to act judicially, Shah J. speaking for the Court said : "The duty to act judicially imposed upon an authority by statute does not necessarily clothe the authority with the judicial power of the State. PRE |
Even administrative or executive authorities are often by virtue of their constitution, required to act judicially in dealing with question affecting the rights of citizens. Ratio |
Boards of Revenue, Customs Authorities, Motor Vehicles Authorities, Income tax and Sales Tax Officers are illustrations prima facie of such administrative authorities, who though under a duty to act judicially, either by the express provisions of the statutes constituting them or by the rules framed thereunder or by th... |
Their primary function is administrative and not judicial." PRE |
It is true that the question whether an Income tax Officer was a court or a tribunal was not directly for decision in jaswant Sugar Mills ' case(1). PRE |
It is clear however that as a part of the reasoning which the court applied for coming to the conclusion that the Conciliation Officer is not a Tribunal this Court was of opinion that an Income tax Officer is also not a "Tribunal". PRE |
Obviously, if it is not even a Tribunal it cannot be a court. PRE |
It is not seriously disputed by Mr. Desai who appeared before us for the respondent that looking at the functions of an Income tax Officer it is not possible to say that the Income tax Officer is a court specially after this Court 's decision in Jagannath Prasad 's case( ',) mentioned above. PRE |
His main contention is that even though the Income tax Officer was not originally a court within the meaning of section 195 of the Code of Criminal Procedure, the deeming provision in section 37(4) has made him a court. PRE |
Section 37(4) runs thus : "Any proceeding before any authority referred to in this section shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code (45 of 1860)." PRE |
The authorities mentioned in the section are the Income tax Officer, the Appellate Assistant Commissioner and the Appellate Tribunal. Ratio |
The direct effect of subsection 4 of section 37 therefore is that proceedings before an Income tax Officer "shall be deemed to be a judicial proceedings within the meaning of section 193 and section 228 and for the purposes of section 196 of the Indian Penal Code. Ratio |
As we read the section it at once leaps to the eye that there is no mention in this of section 195 of the Code of Criminal Procedure. Ratio |
In introducing this deeming provision in 1956 (1) [1963] Supp. 1 S.C.R. 242.(2) ; 720 Parliament did not think it necessary to extend the deeming provision for the purpose of section 195. Ratio |
If Parliament intended this provision to produce the consequence that the authori ties in the section should be deemed to be a court within the meaning of section 195 (2) of the Code of Criminal Procedure, it is reasonable to expect that Parliament would have added the words "and shall be deemed to be a court within th... |
The omission to use any such words is all the more remarkable when we notice that on several occasions before 1956 Parliament had in expressing an intention that a particular authority should be a court for the purpose of section 195 added express words to give effect to that intention. Ratio |
Thus, in the , which was enacted in 1936, section 18 after stating that every authority appointed under sub section Ratio |
(1) of section 15 shall have all the powers of a civil court under the Code of Civil Procedure for certain purposes, proceeded to say that "every such authority shall be deemed to be a civil court for the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898. Ratio |
" Again, in section 23 of the Workmen 's Compensation Act which confers on the Commissioner for workmen 's Compensation all the powers of a civil court under the Code of Civil Procedure, 1908 the legislature added in 1929 the following words: "and the Commissioner shall be deemed to be a civil court for all the purpose... |
It is worth noticing also that in several other statutes parliament after stating that certain proceeding shall be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code proceeded to say that for certain purposes it shall also be deemed to be a court. Ratio |
The Evacuee property Act of 1950 after stating that the enquiry by the custodian shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, goes on to say "and the Custodian shall be deemed to be a court within the meaning of sections 480 and 482 of the Code ... |
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