WATERWAYS SHIPYARD PVT.LTD., REP. BY ITS AUTH. REPRESENTATIVE RAMCHANDRA SHRIPAD SHIRODKAR AND ANR vs. THE INCOME TAX DEPARTMENT, REP. BY THE DEPUTY COMMISSIONER OF INCOME TAX

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CREVA/1/2024HC BombayHCBM05002216202426 August 2024Author: HON'BLE SHRI JUSTICE BHARAT P. DESHPANDE3 pages
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What did the High Court hold?

The High Court held that the applicants' contention, supported by the decision in Unique Trading Company (Supra), that Section 258 of the Cr.P.C. is not applicable to a private complaint filed under Section 200 of the Cr.P.C. by an Income Tax Department officer, is correct. Therefore, the order dated July 3, 2024, in WPCR No. 45 of 2024, which granted liberty to approach the Trial Court for discharge, was required to be recalled or varied. The review application was disposed of in terms of this finding. The original writ petition (WPCR No. 45 of 2024) was restored and posted for further consideration on September 19, 2024. The Court did not decide on the merits of the original writ petition or the cognizance taken by the Magistrate, but rather on the procedural aspect of seeking discharge.

What were the facts?

The applicants, Waterways Shipyard Pvt. Ltd. and another, filed a Criminal Writ Petition (WPCR) No. 45 of 2024 before the High Court of Bombay at Goa. By an order dated July 3, 2024, the High Court disposed of this petition, granting the applicants liberty to approach the Trial Court for filing a discharge application. The applicants then filed the present Criminal Review Application (CREVA) No. 1 of 2024, seeking a review of the July 3, 2024 order. The applicants argued that the complaint filed before the Magistrate was not a chargesheet but a complaint under Section 200 of the Cr.P.C. by an Income Tax Department officer, and therefore, Section 258 of the Cr.P.C. was not applicable, preventing them from filing a discharge application. The Income Tax Department contended that notice was not issued to them in the original writ petition, but the petition was disposed of by granting liberty to approach the Trial Court, and a case for cognizance was made out due to non-payment of income tax and interest.

What were the issues?

1. Whether Section 258 of the Code of Criminal Procedure, 1973 (Cr.P.C.) is applicable to a complaint filed under Section 200 of the Cr.P.C. by an officer of the Income Tax Department, thereby enabling an application for discharge. Assessee's Contention: The applicants argued that the complaint filed before the learned Magistrate was not a chargesheet but a complaint treated under Section 200 of the Cr.P.C. by an officer of the Income Tax Department. Consequently, Section 258 of the Cr.P.C. is not applicable, and they cannot file a discharge application. They relied on the decision in Unique Trading Company and others V/s Income Tax Officer, 2024, SCC OnLine 417. Revenue's Contention: The respondent (Income Tax Department) submitted that notice was not issued to them in the original writ petition. However, they acknowledged that the petition was disposed of by granting an opportunity to the petitioner to approach the Trial Court. They argued that a case for taking cognizance was made out as income tax was not paid within time and interest was also not deposited.

Which sections of the Income-tax Act were involved?

Section 200,Section 258

AI-generated summary — verify with the full judgment below

Sonam IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVIEW APPLICATION NO.1 OF 2024 IN CRIMINAL WRIT PETITION NO.45 OF 2024 WATERWAYS SHIPYARD PVT.LTD., REP. BY ITS AUTH. REPRESENTATIVE RAMCHANDRA SHRIPAD SHIRODKAR AND ANR ... APPLICANTS Versus THE INCOME TAX DEPARTMENT, REP. BY THE DEPUTY COMMISSIONER OF INCOME TAX ... RESPONDENT Mr. Parag Rao(through VC) with Mr. Ajay Menon, Advocates for the Applicants. Ms. Susan Linhares, Standing Counsel for the Respondent. CORAM:- BHARAT P. DESHPANDE, J. DATED :- 26th August, 2024 P.C.:

1.

Heard Mr. Rao, learned Counsel for the Applicants and Ms. Linhares, learned Standing Counsel for the Respondent.

2.

The present application is filed for review of the order dated 03.07.2024 in WPCR No. 45 of 2024. 3. By the said order, Petition filed by the Applicants was disposed of with liberty to the Applicants to approach the Trial Court for filing the 26th August, 2024 2024:BHC-GOA:1396 discharge application.

4.

Mr. Rao, learned Counsel for the Applicants now submits that the complaint filed before the learned Magistrate is not the chargesheet, but it is treated as the complaint under Section 200 filed by the officer of the Income Tax Department. He submits that Section 258 of Cr.P.C. is not applicable to such a complaint and therefore, Applicants will not be able to file any discharge application. In this respect, he places reliance on Unique Trading Company and others V/s Income Tax Officer, 2024, SCC OnLine 417. 5. Ms. Linhares, learned Standing Counsel for Respondent would submit that notice was not issued to the Respondent in WPCR No. 45/2024. However, the Petition was disposed of by granting an opportunity to the Petitioner to approach the Trial Court. She submits that a case is made out for taking cognizance, since Income Tax was not paid within time and even the interest was not deposited.

6.

The question before this Court is only with regard to order granting liberty to the Applicant to approach the learned Trial Court seeking discharge.

7.

Mr. Rao has now pointed out that complaint being a private complaint, provisions of Section 258 of the Cr.P.C. are not applicable. Said Contention is supported by the decision of this Court in Unique 26th August, 2024 Trading Company (Supra).

8.

Accordingly, order dated 03.07.2024 in WPCR No. 45 of 2024 is required to be recalled/varied.

9.

Application for review is therefore disposed of in above terms.

10.

WPCR No. 45/2024 is restored. Ms Linhares waives notice on behalf of the Income Tax Department. Mr. Menon, learned Counsel for the Applicants undertakes to furnish copy of the petition along with the documents to Ms. Linhares.

11.

WPCR No. 45 of 2024 is now posted for further consideration on 19.09.2024. Review application is accordingly, disposed of. BHARAT P. DESHPANDE, J. 26th August, 2024

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