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No relief under sec. 54F if no capital gain was declared in ITR: ITAT
In the instant case, the assessee filed his return of income, which the CPC accepted u/s 143(1) of the Act. Subsequently, the assessee pleaded that due to a mistake by his previous authorised representative, deduction u/s 54F could not be claimed in the return of income.
However, it was noted that no capital gain was shown in the return of income. The income declared therein was on profit from the 'business or profession'. The assessee submits that due to a mistake by the previous authorised representative and the assessee, the capital gain deduction u/s 54F could not be claimed in the return of income.
The assessee placed reliance on the case of Goetze (India) Ltd. v. CIT [2006] 284 ITR 323 (SC) and argued that this Tribunal has ample power to direct the Assessing Officer to consider a new plea of deduction u/s 54F.
The Tribunal held that, admittedly, no capital gain was shown in the return of income, and no claim was also made under section 54F. Had the assessee been declared capital gain in the return of income and no claim under section 54F thereon, this Tribunal would have directed the Assessing Officer to consider the same, taking support from the Supreme Court's decision in the case of Goetze (India) Ltd. v. CIT (supra).
As discussed above, the assessee himself declared income under the head 'business or profession', and no capital gain was admitted. Therefore, having no declaration of capital gain in the return of income, directing the Assessing Officer to consider the claim under section 54/54F does not arise. Therefore, no infirmity was found in the order of the Commissioner (Appeals), and it is justified. Thus, the grounds raised by the assessee are dismissed.
Appeal filed u/s 377 Cr. P.C. against conviction order passed u/s 276B lies in Sessions Court: Karnataka HC
The Special Court for Economic Offences convicted the assessee accused of offences under section 276B, read with section 278B. The Department had filed the instant appeal under section 377 of Cr.P.C. against the sentence for its inadequacy.
The matter reached before the Karnataka High Court.
The Court held that the offences under Chapter XXII of the I.T. Act, 1961, are non-cognizable offences in view of section 279-A. As per the first schedule of Cr.P.C. classification of offence against other laws, if an offence is punishable by imprisonment for less than 3 years or with a fine only, it is classified as non-cognizable, bailable and triable by any Magistrate. As the offences stated in section 279-A are non-cognizable within the meaning of Cr.P.C., they are triable by a Magistrate.
Offences registered by or against elected representatives are now tried by Special Courts established, and it is presided over by a Sessions Judge. That Special Court presided over by a Sessions Judge can be said to come under clause (b) - any other Court’. The Special Court for economic offences, Bangalore, is presided over by an officer of the rank of Magistrate and does not come under clause (b) - any other Court’. The appeal against convictions for the offence under Chapter XXII of I.T. Act, 1961 lies to the Sessions Judge under section 374 of Cr.P.C.
It was submitted that the assessee-accused had challenged the judgment of conviction passed by the Special Court, and the said criminal appeal is pending before the Sessions Court. If the appeal has been tried against the judgment of conviction by the Sessions Court and if the High Court deals with the appeal against the inadequacy of the sentence, it may lead to the passing of conflicting judgments.
In case of an appeal against conviction, if the Sessions Court reverses the judgment of conviction and acquits the accused and the High Court allows the appeal filed against the inadequacy of sentence, then the decisions are conflicting against the same judgment of conviction passed by the Special Court. To avoid such conflicting judgments, the appeal against conviction and appeal against inadequacy of the sentence are to be dealt with by the same Court.
Further, it was argued that in an appeal filed against the sentence on the ground of inadequacy under section 377 of Cr.P.C., the accused may plead for his acquittal or for reduction of sentence as provided under sub-section (3) of section 377 of Cr.P.C. The right of appeal is provided to the accused to challenge the judgment of conviction and order on sentence under sub-section (3) of section 374 of Cr.P.C. So also sub-section (3) of section 377 of Cr.P.C. provides for the accused to plead for his acquittal or reduction of sentence.
The accused who has been convicted need not wait till the State files an appeal under section 377 of Cr.P.C. to plead for his acquittal or for reduction of sentence. The accused has a statutory right under sub-section (3) of section 374 of Cr.P.C. to challenge the judgment of conviction and order on sentence passed by the Special Court. If the accused has not challenged the judgment of conviction and order on sentence by filing an appeal under sub-section (3) of Section 374 of Cr.P.C., then in the appeal filed under Section 377 of Cr.P.C., he can plead for his acquittal or reduction of sentence under sub-section (3) of section 377 of Cr.P.C.
Accordingly, the appeals preferred by the Income Tax Department under section 377 of Cr.P.C. were not maintainable and accordingly, all the appeals were dismissed.
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