Case Note & Summary
The petitioner, Shri M A Zahid, filed a criminal petition under Section 438 Cr.P.C. seeking anticipatory bail in the event of his arrest in connection with a notice issued by the Assistant Commissioner of Income Tax (OSD), Tax Recovery Office, Bengaluru. The notice, issued under Rule 73 of the Second Schedule of the Income Tax Act, 1961, directed the petitioner to appear and show cause why he should not be committed to civil prison in execution of a certificate for recovery of tax arrears for the assessment year 2007-08. The petitioner had failed to pay the amount specified in the certificate. The court examined the nature of the notice and concluded that it was a civil proceeding for recovery of tax, not a criminal prosecution. The offence under Section 276C of the Income Tax Act (wilful attempt to evade tax) was not invoked. Consequently, the court held that the remedy of anticipatory bail under Section 438 Cr.P.C. is not available for such civil proceedings. The petition was dismissed as not maintainable.
Headnote
A) Criminal Procedure - Anticipatory Bail - Section 438 Cr.P.C. - Income Tax Act, 1961, Second Schedule, Rule 73 - The question was whether a person issued with a notice under Rule 73 of the Second Schedule of the Income Tax Act, 1961 is entitled to invoke Section 438 Cr.P.C. The court held that the notice under Rule 73 is for civil imprisonment in execution of a certificate for recovery of tax arrears, and not for any criminal offence. Therefore, the remedy of anticipatory bail under Section 438 Cr.P.C. is not available. (Paras 1-3)
Issue of Consideration
Whether a person issued with a notice under Rule 73 of the Second Schedule of the Income Tax Act, 1961 is entitled to invoke Section 438 of Cr.P.C.
Final Decision
The petition is dismissed as not maintainable. The notice under Rule 73 of the Second Schedule of the Income Tax Act, 1961 is for civil imprisonment in execution of a certificate, and the remedy of anticipatory bail under Section 438 Cr.P.C. is not available.
Law Points
- Anticipatory bail under Section 438 Cr.P.C. is not available for proceedings under Rule 73 of Second Schedule of Income Tax Act
- 1961
- as the notice is for civil imprisonment in execution of a certificate
- not for a criminal offence under Section 276C of the Income Tax Act.
Case Details
2018 LawText (KAR) (06) 15
Criminal Petition No.3668 of 2018
Murthy D Naik (for petitioner), K V Aravind (for respondent)
Assistant Commissioner of Income Tax (OSD), The Tax Recovery Office (Central)
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Nature of Litigation
Criminal petition for anticipatory bail under Section 438 Cr.P.C. in connection with a notice under Rule 73 of Second Schedule of Income Tax Act, 1961 for civil imprisonment in execution of a tax recovery certificate.
Remedy Sought
The petitioner sought enlargement on bail in the event of his arrest in F.No.M A ZAHID/TRO(C)/2017-18, Bangalore for the offence punishable under Section 276(C) of Income Tax Act.
Filing Reason
The petitioner was issued a notice under Rule 73 of the Second Schedule of the Income Tax Act, 1961 directing him to appear and show cause why he should not be committed to civil prison for failure to pay tax arrears.
Issues
Whether a person issued with a notice under Rule 73 of the Second Schedule of the Income Tax Act, 1961 is entitled to invoke Section 438 of Cr.P.C.
Submissions/Arguments
Petitioner argued that the notice under Rule 73 amounts to a criminal proceeding and thus anticipatory bail is maintainable.
Respondent contended that the notice is for civil imprisonment in execution of a certificate, not a criminal offence, and Section 438 Cr.P.C. is not applicable.
Ratio Decidendi
A notice under Rule 73 of the Second Schedule of the Income Tax Act, 1961 is a civil proceeding for recovery of tax arrears by civil imprisonment, not a criminal prosecution. Therefore, the remedy of anticipatory bail under Section 438 Cr.P.C. is not available to the person issued with such notice.
Judgment Excerpts
Whether a person issued with a notice under Rule 73 of the Second Schedule of the Income Tax Act 1961 is entitled to invoke section 438 of Cr.P.C. is the question that arises for consideration in this petition.
The notice reads as under: (Annexure-B) 'In execution of the certificate for A.Y. 2007-08, Whereas you have failed to pay the amount of arrears specified in said certificate Notice of demand in ITCP-1 vide F.No.4/TRO.CR-1/CC-Belgaum/M.A.Zahid/2013-14 dated 18.06.2013 drawn up...'
Procedural History
The petitioner filed a criminal petition under Section 438 Cr.P.C. seeking anticipatory bail. The petition was heard and reserved for orders on 19.06.2018, and pronounced on 26.06.2018.
Acts & Sections
- Income Tax Act, 1961: 276C, Second Schedule Rule 73
- Code of Criminal Procedure, 1973 (Cr.P.C.): 438
