M/s. Himagiri Greenfields Pvt. Ltd., V. Dy. Commissioner of income-tax,

CRLATR/5/2018

AI Insights

The case involves M/s. Himagiri Greenfields Pvt Ltd and its directors, who were convicted for willful evasion of tax under Sections 276-C(2) and 278-8 of the Income Tax Act, 1961. The convictions were based on an initial assessment order dated 02.12.2010, which was later found to be incorrect and was modified. The appellants argued that they had not received the sale proceeds from M/s. Mytas Property Private Limited and that there was no willful evasion of tax. The High Court found that the prosecution was based on an incorrect assessment and thus set aside the convictions, remanding the case for re-evaluation under the revised assessment.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 726579 (HC-TELANGANA)
• Appeal Type: Others
• Pronouncement Date: 17-06-2022
• Assessment Year: misc
• Other Referred Cases: V. Srinivas Reddy Vs. State of Andhra Pradesh
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: B NARASIMHA SARMA
• Assessee Lawyers: VINOD KUMAR DESHPANDE
• Keywords: Assessment Order; Income Tax Return; Penalty; Prosecution; Willful evasion of tax
• Section: 143(1); 221(1); 276-C(2); 140-A; 221(2); 278-8; 37a(2); 140-4(3)

Judgement Text

"IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD FRIDAY THE SEVENTEENTH DAY OF JUNE TWO THOUSAND AND TWENTY TWO PRESENT THE HONOURABLE DR. JUSTICE D.NAGARJUN CRIMINAL APPEAL TRANSFER Nos: 5 and 25 OF 2018 Crl.A.(TR) No. 5 of 2018 Crl.Appeal Under Section 37a (2) of Cr P C. against the Judgment dated 09-01-2014 in C.C.No 121 of 2011 on the file of the Court of the Special Judge for Economic Offences at Hyderabad Between: 1 M/s. Himagiri Greenfields Pvt Ltd., Flat No. I 02, Dhanunlaya Nest, Rajiv Nagar, Yousufguda, Hyderabad-4s, Rep by Shri D V.S.Subba Raju, S/o Late D K. Raju, Aged about 45 years. 2. Shri D V.S Subba Raju, Director of M/s Himagiri Greenfields Pvt Ltd , Flat No.102, Dhanunjaya Nest. Raliv Nagar, Yousufguda, Hyderabad-45. 3. Shri AIluri Venkata Raghava Ralu, Director of M/s. Himagiri Greenfields Pvt Ltd , Flat No 102, Dhanunjaya Nest, Rajiv Nagar, Yousufguda, Hyderabad-45 .\". Appellants / Accused Nos. 1, 2, & 5 AND Dy No Com missioner of lncome{ax, Central Circle-8, Aayakar Bhavan, Room 8'n Floor, Basheerbagh, Hyderabad-500004. ...RESPONDENT/ Complainant 805 Counsel for the Petitioner : SRl. VINOD KUMAR DESHPANDE, Sr. Counsel rep.SRl G. ASHOK REDDY Counsel for the Respondent : SRI B. NARASIMHA SARMA S.C. for l.T. Crl.Appeal Under Section 374 of Cr.P.C. against the Judgment dated 09-01-2014 in C.C.No. 121 of 2011 on the file of the Court of the Special Judge for Economic Offences at Hyderabad. CRIMINAL APPEAL TRANSFER NO: 25 OF 2018 Between: 1. B Suryanarayzrna Raju, S/o. Late B. Satyanarayana Raju, ar;ed about 51 years. Drrector of M/s. Himagiri Greenfields Pvt Ltd.. Flat No. 1 02, Dhanunlaya Nest. Rajiv Nagar, Yousufguda, Hyderabad-4s. 2. Namburi Rama Raju. S/o. Venkata Ra.ju, aged about 49 years, Director of M/s Himagiri Greenfields Pvt Ltd.. Flat No 102 Dhanunlaya Nest, Rajiv Nagar, Yousuf3uda. Hyderabad-45. ... Appellants / Accused 3 & 4 AND Dy. Commissioner of lncome-tax, Central Circle-8, Aayakar Bhavan, Room No.805 8th Floor, Basheerbagh, Hyderabad-SOOOCt4 ...Rt:SPONDENT Counsel for the Respondent : SRI B. NARASIMHA SARMA S.C. for l.T. Counsel for the Pr:titicner : SRl. VINOD KUMAR DESHPANDE Sr. Counsel rep.SRl 'r'. SURENDER RAO The Court delivered the following: Common Judgment CRIMINAL APPEAL [TRl Nos.S and 25 of 2018 COMMON JUDGMENT: Crl.A.(TR).No.5 of 2018 is iiled by A1, A2 and A5 i.e., Company and its two Directors respectively, whereas Cr1.A.(TR).No.25 of 2QlB is fiied by A3 and 44, who are other Directors of A1/company, being aggrieved by the conviction and sentence imposed by the learned Special Judge for Economic Offences at Hyderabad in C.C.No.12l of 2011 vide Judgment dated 09.01.2014, u,herein Accused Nos. I to 5 were found guilty of the offences punishable under Section 276-C(21 read with Section 278-8 of the Income Tax Act, 196 1 (for short, \"the Act\") consequently accused No. I was sentenced to pay line of Rs. 10,000/- and in default ol payment of fine to initiate appropriate proceedings AS required under Section 427 of Cr.P.C., whereas Accused Nos.2 to 5 were sentenced to undergo rigorous imprisonment for a period of one year each and to pay fine of Rs.10,OO0/- each and in default of payment of Iine by accused Nos.2 to 5, to undergo simple imprisonment for a period of one month each. THE HON'BLE DR. JUSTICE D.NAGARJUN Since the issues involved in these zLppeals are one and the same, iroth tlre appeals are being disposed ol bv this common judgment. 2. For r:onvenience, the parties herein are relerred to as they aJe arraycd before the trial Court. i.e., Appellant No.1 as Accused No.17 Company and Appellant lrlos.2 to 5 as Accused Nos. 2 to 5. 3. 1'he genesis of these cases, which lead the appellar-rts- accused to prefer these appeals, are narrated in brief as under: i) Accused No.1/Company - M/s. Hemagiri Greenfields Private Lirnited, which was registered under the Companies Act with the Registrar of Companies at Hyderabad as Private Lirnited Company, was engaged in the business of acquisition and sale of lands. Appellant Nos. 2 to 5 herein are the Directors of Accused No. 1/ Company. ii) Accused No.l/Company has acquired lands to an extent of Ac.7.OO guntas in Sy.No.194 under the limits of Bachupally Mandal, Ranga Reddy District during the lrndircYal year 2002-2003 and developed the said lands by I 3 incurring some arnounts during the linancial years 2002- 03 to 2007-08. Accused No. 1/Company along with other companies, who have lands contiguous to the lands of Accused No.1/Company, have agreed to develop the iands jointly with M/s. Mytas Properly Private Limited. As per the said development agreement, the built up area agreed to be given to Accused No. 1/ company, was allou,ed to be sold to various buyers by M/s. Mytas Property Private Limited and pass on the sale proceeds to Accused No.1/Company. iii) For the assessment year 20OB-09, accused No.1/company has liled income tax returns on 30.09.2008 under Ex.P1 by bifurcating the sale proceeds into long term capital gains accrued from the sa-1e proceeds of the lands and short term capital gains accrued from the sale proceeds of the constructed area by showing gross taxable income as Rs.7,65,64,5701-, out of which an amount of Rs.4,86,86,424 l- was shown as long term capital gain and Rs.2,78,78,148/ - was shown as short term capital gains I i..) Accused No.1/Company 1S expected to pay the income tax either by way of advalc e tax as required under Section 2O8 of the Act or at least alorrg u'ith filing oi returns in terms of Section 14O-A of the Act. As per Sectior.r 143 (1) of the Act, the tax liability ol Accr.rsed No.1 was arrived at Rs.2,27 ,74,267 I - by the respondt:nt/complainant and raised a demand under Section 156 read with Section 143 of the Act and issued an intimation to Accused No.1/Corrpanl' under Ex.P2. Accused No.1/company was required to pay the tax demanded within 30 days of service of notice, but it has comrnitte d default. v) Respondent/complainant has issued show-cause notice dated 77.11.2OO9 under Section 221 (ll o1'the Act under Er.. P5, wherein the appellants lvere asked to shou. cause as to why penalty should not be levied for committing default in payment of Lax. As there was no response from the appellants, the complainant has issued a-nother show-cause notice dated 01.09.20iO undr:r Ex.P6 under Ser:tion 221 (I read with Section 143-A of the Act. I 5 Finally, one more opportunity was also give n by the Department by giving another show-cause notice dated 16.09.2010 (Ex.P7) under Section 221 (11 read with Sectron 143-A of the Act. An opportunity of being heard u,as also given by the respondent/complainant to Accused No.1/Company fixing the date of hearing as 21.09.2010, but there was no response, on u'hich a penalty of Rs.4O,0O,O0O/- was imposed by way of order dated 22.09.2O1O (Ex.PB) under Section 221 read with Section 140-4.(3) of the Act and the said proceedings u,ere served on accused No.l on 23.O9.2010. 4. Considering the willful evasion of payment of tax, the respondent/complainalt has decided to initiate prosecution and accordingly a notice was issued to accused No.l/company and other Directors under Section 276-C(21 of the Act, as to why prosecution shall not be initiated against them for willful evasion of the tax. All of them have given reply stating that there was no intention to evade payment of tax. Another notice was issued to accused No.1/Company and its directors under Exs.P10 to P13 dated 04.10.2010 asking them as to why prosecution shall not 6 be initiated Lrnder Section 276-C(21 of the Act. Again replies u,cre filed bl, accused No.1/company and its Directors/ accused Nos.2 to 5 under Exs.Pl4 to P17 stating that therr: was no inte n[ion of w 1lfu1 evasion of tax. 5. As Accused No. 1/Company and its Directors / accused Nos.2 to 5 h:rve not paid the tax in response to the demand notice issued under Section 1a3 (1) of the Act and also failed to pay the penalty, the respondent/complainant after obtaining sanction order dated 25.02.2011 for launching of prosecution filed a complaint before the Special Court for Economic Offences against accused No.1 and accused Nos.2 to 5, the other Directors, alleging that they have committed offence punishable under Section 276-C(21 read with Section 278-8 of the Act, as they have u,illfully evaded tax even though they were having sufficient resoLlrces. 6. The Special Court for Economic Offences took cognizance of the offences against Accused No.1/Company and its Directors i.e., Accused I'los. 1 to 5, under Section 276-C(2 read rvith Section 278-R cf the Act and charges wert-' framed agairLst them under Section 276 - C(2) read with Section 278-B(L) of the Act 7 and all the accused have pleaded not guilty of the cl-rarges and claimed to be tried. 7. In order to prove the charges Ieveled against the appellarrts, the respondent/complainant has examined PWs.1 to 3 and got marked Exs.Pl to PlB. After closure of evidence of the complainant, the incriminating evidence elicitecl against the appellants was read over and explained to them under Section 313 of the Cr.P.C., for which ali ol them have denied and reported that they did not choose to examine an1' u'itness on their behalf. However, they got marked Exs.D L to D3 on their behalf. B. The substance of the evidence of PWl is that after receiving of returns of income tax filed by accused No.1/company, the respondent/complainant has processed the same under Section 1a3(1) of the Act and issued intimation determining the total taxable income as Rs.7,65,64,5701- and tax liabiiity as Rs.2,50,30,160/-. The evidence of PW2/Income Tax officer is to the extent that he has considered the annual report of accused No.l/company for the financial year 2OO7-OB under Ex.P3 and lbank account statements of accused No.l/Company with the AXIS Ilank Limited under Ex.P4 alrl found that accuscd No.1,/6sr.,,r,rLv did not pay the tax retrrns in spite of having surplus ancl sufficient funds. PW3 is the Income Tax Officer, u,ho has suc<:eeded PW2. His evidence is that he has passed penalty order under Ex.PS imposing pena1t5. of Rs.40 lakhs and raised de:na nd under Ex.P9 and the sa,me u,as served on the accused. He aiso deposed that as there was no response from the accused, show cause notices under Section 276-C ol the Act u,erc issur'd aglainst all the accused through n,hich accused were informed t hat the department is initiating criminal proceedings and consequently the department has fi1erl the complaint. 9. After full .fledged trial, on considering the entire material on record, the trial Court has found Accused No. 1 / Company and A.2 to A5, the Directors of A1 company, guilty of the offences punishable under Sections 276-C(2 and 278-B of the Act and were sentencecl as stated supra. Aggrieverl by the said judgment and convictior of Special Judge for Economica-l Oflences at Hyderabad, th,: present appeals are filecl originally belore the Metropolitan St:ssions Judge Court at Hyderabad. I 9 10. T1-re erstwhile High Court for the States of Telangana and Andhra Pradesh has issued circular ROC.No.34. Criminal Sectionl2OlT, dated 28.08.2017, wherein it is clarilied that against aly orders passed by the Special Judge for Economic Offences, Hyderabad, in the State of Telangana and Visakhapatnam in the State of Andhra Pradesh, the High Court has the jurisdiction to entertain the appeals, not the Sessions Court. In view of the said circular, these appeals iiled b), th\" appellants have been transferred from Metropolilan Sessions Judge Court, Hyderabad, to the High Court for the State of Telangana. 11. The summarJz of grounds of appeal as liled b1, the appellants in brief are as under: a) The trial Court has failed to see that accused No.1/company was not having funds to pay the tax on the due date as reflected in Ex.P4-bank statements and that accused No.l has not received any sale proceeds from M/s. Mytas Property Private Limited, thereby the respondent/complainant has not produced arly evidence to show that accused 10 No. l/Company has received sale proceeds from M7 s. Mytas Property Prir.ate Limited. b) The trial court has misconstrued the presumption under Section 278 A of the Act and erred in holding that the burden of proof is on the accused to prove that there was no willful evasion of payment of t-ax. c) The trial Court erred in holding that the accused failed to prove non-existence of culpable mental state in non-payment of taxes on the date of filing returns and as cn the date of demand notice ald that the trial Court failed to appreciate that in spite of not l-raving an'r cogent evidence to show that all the accused have u,-illfutIy evaded the tax, the trial Court has concluded that accused have c,rmmitted willful evasion in payment of tal. d) The trial court fajled to see that all the assets belong to accused No.1 /t)ompany were attached under Section 2B 1-B of the Act alcl due to paralyzing of financial activities of accused No. 1, tax could not be paid in time. e) The trial ccurt failed to consider the admission of PW3 that the amount received by Accused No. l/Company is t.owards I 1l share application money does not attract tax liability and that the trial Court could not consider that accused No.1 has not received Rs.7 crores 65 lakhs from M/s. Mytas Property Private Limited. l) The Trial Court should not have concluded that accused Nos.2 to 5 are responsible for day to day affairs of accused No. 1 / company and should have taken into consideration the notices issued under Section 27 8-B of the Act proposing the prosecution did not refer accused Nos. 2 to 5 as principal oflicers and thereby accused Nos.2 to 5 should have been acquitted. 12. Heard Sri Vinod Kumar Deshpande, learned Senior counsel for the appellants and Sri B. Narasimha Sharma, learned Standing counsel for the income tax department, considered the entire material on record, relevant provisions of the Act and the authorities cited. 13. Appellant No. l/company has filed an application under Section 391 Cr.P.C., along with the appeal for receiving of tu,o documents i.e., (i) Common order passed by the Appellate Tribunal in ITA.No.1OOB of 2014, dated 22.05.2015 and (2) 12 consequentla. order, dated 21.03.2016 passed by the Assessing Officer, Assistant Commissioner of Income Ta-x, Centra,l Circle- 3(2), HyderaL,ad, as additional evidence. As per the, common order of lhe Tribunal, dated 22.O5.2O1) (document No.1), the assessment order dated 02.12.2O1O on '\"rrhich the prosecution is initiated 's,as tlirected to be modified. Basing on the orders of the Income 'l'ax Appellate Tribunal, the :Lssessment olficer has modilred the r,arlier orders dated 02.12.2t)lO by re-asse:ssing the tax liability, vrhich the appellants were ()xpected to pzLy for the assessmerlt year 2OO7 -2008 (document l o.2). Considering the above, and orr hearing both sides, this Court is of the opinion that these tu'o documents are very relevant to consider the appeals on ha-rd, thereby these documents are received. 14. It is submitted vehemently by the learned Senior Counsel for the appellants that during the pendency of the complaint before thr: trial Court, the accused have paid entire tax as demanded, including the penalty and interest and that the appellants hzLve challenged the assessment orders dated 02.12.2OlO ur:der Ex.D2 before the learned CIT(A). On hearing both sides. learned CIT(A) has found that there are no rrerits in I 13 the contentions raised by the appellants, and dismissed the appeal upholding the orders passed by the Assessing Oflicer for assessment year 20OB-09. Aggrieved by the same, the appellants have preferred appeal before the Income Tax Appellate Tribunal (in short, \"the Tribunal\"), and on hearing both sides, learned Tribunal has partly a,llowed the appeal vide orders dated 22.O5.2015 in ITA.No.943lHyd/2Ola and others finding that the Assessing Officer has committed error in calculating the tax to be paid by the appeilants and directed the Assessing Officer to re-assess the tax by computing the income of the appellants from the transfer of lands held by accused No.l/company as capital assets by way of deveiopment agreement and subsequent to sa,le of flats ald bungalows received as consideration for such transferred amounts to stock in trade on conversion. These orders are passed alter passing conviction vide judgment dated 09.O1.2014 in C.C.No.121 of 2011 by the learned Special Judge. It is also submitted bv the learned Senior counsel that the Assessing Officer has re-assessed the tax as per the directions of the Tribunal and passed consequential order, dated 21.03.2016, wherein the tax liability was substantially reduced and found ) ) that the tax, which was already paid to the tune of t4 Rs.2,27 ,7 4,'2e,7 l- .r as in excess of the revised tax thereb)', the excess ta-x paid Rs.1,44,19,537 l- and interest of Rs.41,19,798/- the total of which was Rs. 1,85,39,335/-, :as ordered to be refunded ar-rd the same was also adjusted against the demand for the accorrnting year 2009-10 vide RO.No.3O3515 dated 28.O3.2016. On considering the submissions ol the learned Senior counsel it is clear that the appellants have not only paid the tax demanded along with interest and penaIt1,, but also on account ol re-assessm€nt of tax, the tax already pzrid was in excess of ta-x liability, and that the same was adjusted for future tax liability and hence, sought for allowing of the appeals. 15. Lean-red standing counsel representing the Income Tax Department stated that as on the due date , the accused have not paid the tax having sufficient funds a-nd committed willful evasion of payment of tax. It is also submitted that Accused No.l/company has filed annual returns (Ex.P3), through its Chartered Accc untant for the financial year 2OO7 -O8 relevant for the assessmenr- year 2008-09, according to u'hich Accused No. 1 made profit on sale of land to a tune of Rs.7,73,94 ,149 I - and the l 15 bank statements shor,,' that Accuse d No. 1/Company has received part of sale consideration in respect of \"Mytas Hill County\" from time to time, but did not choose to pay the advance tax. It is further submitted that the balance sheet of Accused No.1/Company also shows Rs.9,33,33,082/- under the head reserves and surplus, so also Rs. 11,73,97,356/- under the head current assets by way of loans and advances. It is further submitted that accused No.1/Company having enough liquid cash during the relevant accounting year, wi1lfully evaded in payment of tax, thereby the accused have committed the offence punishable under Section 276-C(2) read with Section 278-8 of the Act and hence conviction recorded by the trial Court is proper. 1) Whether the conviction recorded based on the assessment order dated 02. L2.2O|O can be sustained, since the said assessment order dated 02. 2.2O lO was subsequently revised? 2) Whether the accused have committed willful evasion of tax? I I 16. Now, the points for determination in these appea,ls are: 16 3) To rvhat relieP Point No. 1: 17. The oause of action for the respondent department/complainant to file the c:omplaint against the appellar-rts is t he assessment order dated 02. l'2 .2OlO, according to r,r,hich the appellants were asked to pay tax of Rs.2,27 ,7.1,267 I - for the taxable income of Rs.7,65,64 ,57O I - and accordir-rgly an intimation was sent by the Assessing ofltcer to the appellants under Section 143 (1) of the Act. Admrttedly as on the date of initiating the prosecution against the appellants, demanded taK of Rs.2,05,08,1261- was not paid by the appellants. It is also an admitted fact that after initiating the prosecution, tl-re appellants have paid th,: entire tax demanded along with pe:raity, interest etc. Therefrrre, as on the date of pronouncement of the judgment by the trial Court, there was no ta-x liability to be paid by the appellants. 18. It is to be noted that the Income Tax Appellant Tribunal having conside red the appeals of the appellants found that the assessment orrler, dated 02.l2.2OlO directing the appellants to pay Rs.2,05,08,126 I - was incorrect and the Assessment Officer t7 was directed to assess the income tax afresh in terms of the directions given by the Tribunal. Accordingly, the Assessment officer has re-assessed the income tax and passed modified orders, dated 21.03.20 16 determining the tax liabiiity, which is far less than what was assessed at the first p1ace. The basis for respondent/ complainant to initiate prosecution against the appellants is the assessment order, dated 02.12.2010, on the ground that the appellants have committed default in payment of the tax as per the said assessment order. When assessment order dated 02.l2.2OlO itself is re-assessed as per the directions of the Tribunal which held that the assessment of tax dated O2.l2.2OlO is incorrect and the tax to be paid was substantially reduced, it cannot be alleged that the appellants have committed default in payment of tax and willfully evaded. When the assessment order dated 02.l2.2OlO itself was modified holding that the Assessment Officer has incorrectly assessed the tax, whatever the consequential proceedings that have been initiated, including the initiation of prosecution of the appellants by the respondent/complainant, conviction recorded by the trial Court, cannot sustain. Basing on the fresh assessment order, dated i 2L.03.20 16, it is to be examined afresh that whether the { l8 appellants heve committed any rviliful evasion ol tax, as defined under Section 276-C of the Act. 19. Therefore, on considering the above discussion, it is clear tl-rat the Iindi-ig of the trial Court that the appe[lants u ere guilty of the offences under Section 276-C(2 read uith Sectron 278,8 of the Act it; erroneous as the same is based on incorrect assessment ,rrder, dated 02.12.2010 and hence, sha11 not sustain, zmd lequired to be set aside. Considering the same, point No.1 is decided in favour of the appel lants; / accused. POINT No.2:- 20. The appellants have also raised other issues i.e., lhey have not committecl any willful evasion in payrnent ol tax since, as on the due clate there were no liquid funds in their accounts and the appellants; - Accused Nos. 2 to 5, who are the Dire,:tors, are not responsi'ble for the day to day activities of accused No.1/Company as on the date of the alleged default, the trial Court has mis,construed the presumption under Section 27 BE of the Act, ti-re tlial Court failed to record admission of PW.3, that I 19 the amount received to 'ards share application does not attract the tax etc. 21. This Court has already came to the conclusion q,hile discussing point No. I that the conviction and sentence recorded in favour of the appellants required to be set aside, on account of the fact that the assessment order dated O2.|2.2OIO on which the conviction was recorded was modilied and a fresh assessment order came into force, hence, the issues raised by the appellants, need not be answered. 22. Learned Senior Counsel for the appellants has placed reliance on the authority passed by the Hon1c1e Supreme Court in the case of V.Srinivas Reddy Vs, State of Andhra Pradeshl, .13. It was tLrcn urged bu Mr. Arunachalom that if the High Court .felt tLnt further euidence was necessary for disposal of the case then it could haue exercised its pou.ter under Section 391 Cr. P.C. and ouqht not to haue set aside the order of acquittal and remanded the matter for fresh disposal. This arqument also did not impress us because the Hiqh Court instead of recording the additional euidence in tenns of Section 391 Cr. P.C.; prefened to remand the matter back to the trial court .for disposal in accordance with law. It also appears from the record that some of the documents includinq FDRs, loan applications etc., should also haue been brought on record for effectiue I t I(1998) 9 SCC 331 wherein it was held as foliows: 20 disposat of the controuersu raised in the case and to do iLtstlce betueen the parties. It is needless to sag that the tial cL'turl will stictLu adhere to the obseruations end directions giuen bg the High Court in its judgment.\" The rationale in the above authority of the Apex Court squarel.r- applicable to the facts of the case on hand. 23. Consi