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Showing 21 to 40 of 1498 Records
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2015 (1) TMI 1486
Nature of expenditure - sales promotion expenses towards obtaining certificate of suitability - revenue or capital expenditure - AO observed that the assessee incurred expenditure for obtaining certificate of suitability for marketing its products there - HELD THAT:- Admittedly the expenditure incurred is not preproduction expenditure. The assessee has been marketing products elsewhere and thus it can be said that the assessee is already in the business of manufacture and sale of drugs. To expand the business in certain countries it has to obtain certificate of suitability as per the FDA Regulations, which is a part of the process of sale of its products. Similar expenditure was considered in Cadila Healthcare Ltd. [2013 (3) TMI 539 - GUJARAT HIGH COURT] wherein it was held that such payments should be considered in the revenue field. No decision of any other High Court, wherein contrary view taken, was placed before us by the Revenue.
Thus hold that the view taken by Hon'ble Gujarat High Court is in accordance with law. In the result, ground No. 1 of the Revenue is dismissed.
MAT credit u/s. 115JA - AO had reduced the MAT credit to Nil due to additions/disallowances made during scrutiny assessment for A.Y. 2006-07 - While computing the tax liability the Assessing Officer set off the amount of MAT credit excluding surcharge and cess from the amount of tax payable after surcharge and cess - HELD THAT:- As appellant has requested for grant of relief in respect of MAT credit, in case, relief is granted by the higher authorities, there is no need to adjudicate upon this request of the appellant as such relief would be automatic. AO shall consider the relief granted by the higher appellate authorities and compute the MAT Credit accordingly and as per law.
Regarding the amount of MAT credit, the amount of MAT credit excluding surcharge and cess cannot be set off from tax payable after surcharge and cess. Thus, following the principle of consistency and justice, the Assessing Officer is directed to give MAT credit which is inclusive of surcharge and cess from the amount of tax payable inclusive of surcharge and cess.
Appeal filed by the Revenue is dismissed.
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2015 (1) TMI 1485
Grant of Bail - failure to comply with the condition, upon which the bail was granted - Failure to make deposit of amount - HELD THAT:- Admittedly, Respondent No. 2 has not deposited the first instalment, but has twice applied for extension of time in the High Court and has been granted extension till 28th February, 2015.
Considering the facts and circumstances of the case including the fact that Respondent No. 2 has been involved in similar cases and apparently owes a large amount of money to various investors, we are of the opinion that the High Court ought not to have granted bail to Respondent No.2.
Bail application dismissed.
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2015 (1) TMI 1484
Cancellation of certain proceedings initiated for sale of the property in question through a private treaty entered into under Rule 8 of Security Interest (Enforcement) Rules, 2002 - whether the petitioner should be relegated to take recourse of the remedy available under under Section 17 and 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002?
HELD THAT:- Even though Shri Shekhar Sharma, learned counsel for the petitioner has tried to emphasize that the remedy available under section 17 and 18 of the Act of 2002 is not a efficacious remedy, but we are of the considered view that as the action taken in the matter is nothing but one under Section 13 read with section 14 of the Act of 2002. There is a statutory remedy of appeal avalable under section 17 before the Debt Recovery Tribunal and thereafter further appeal to the Appellate Tribunal under section 18 , all the disputes between the parties arising out of these proceedings have to be agitated and resolved in these statutory proceedings and it is not appropriate for this court to exercise its extraordinary jurisdiction in these proceedings under Article 226 of the Constitution of India to interfere when a statutory Tribunal has jurisdiction to deal with the matter.
Finding existence of statutory remedy of appeal, this petition stands dismissed.
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2015 (1) TMI 1483
Application of filling petition u/s 10(23C) (vi) delayed - condonation of delay - application for relaxation of time in filing the petition under Section-10(23C) (vi) rejected - HELD THAT:- As Income Tax Act is most complicated piece of legislation. The assessee-society is exclusively engaged for the promotion of Hindi language, so amendment was not known to assessee. In the instant case, the assessee-society was already enjoying the benefit under Section-10(22) of the Income Tax Act and was under bona-fide belief that exemption is continuing. The assessee was totally ignorant about the amendment and department is not supposed to take the advantage of the ignorance of the assessee as per CBDT Circular No. 14 (XL-35)/1955 dated 11 April, 1955.
In the circumstances mentioned above, we set-aside the impugned order and condone the delay with a direction to the competent authority to pass afresh order on merit for the above mention assessment years at the earliest, preferably within a period of four months soon after receiving the certified copy of this order.
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2015 (1) TMI 1482
Dishonor of Cheque - age of ink used in the cheque - reference can be made to any expert for ascertaining the age of the ink used on the disputed document/cheque, or not - Section 45 of the Indian Evidence Act r/w Section 139 of the Negotiable Instruments Act - HELD THAT:- Perusal of the impugned order shows that before the Court below, the complainant has been examined. Seven documents have been marked. Four witnesses have been examined and at that stage, application has been filed. Cheque is stated to have been issued on 18.02.2013. As rightly observed by the Court below, petition under Section 45 of the Indian Evidence Act r/w Section 139 of the Negotiable Instruments Act, has been filed after the examination of the accused. There is no competent authority to ascertain the age of the ink and the said facility is stated to be not available in the Forensic Departments in India. There is no illegality in the finding recorded by the Court below, warranting interference.
Criminal revision case is dismissed.
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2015 (1) TMI 1481
Rectification u/s 154 - validity of the proceedings under S.154 on the ground that it is time barred and even on merits, the assessee is eligible to weighted deduction - HELD THAT:- Revenue is contesting only the issues concerning the period of limitation for passing an order under S.154; and also with regard to the exceptions provided for filing an appeal even where there was no tax effect, but the issue concerning validity of initiating proceedings u/s 154 on the renewed interpretation of law was conspicuously absent in the grounds of appeal.
The order of the CIT(A) with regard to the issue concerning validity of proceedings u/s 154 for the reason that the Assessing Officer having applied his mind at the assessment stage, is not entitled to initiate proceedings u/s 154 based on change of opinion, has attained finality. In such an event of the matter, grounds filed before us, even if a decision has to be rendered, are of academic importance. H
We are of the view that the appeals filed by the Revenue deserve to be dismissed on the ground that the issues raised herein are of academic importance, since the order passed u/s 154 has no legs to stand on the limited ground that it is based on change of opinion, and on this aspect of the matter has attained finality.
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2015 (1) TMI 1480
Validity of sentences awarded to the Appellant - undelivered parcel containing Gold Chain by post office - theft or not - offences punishable Under Sections 381 and 419 of Indian Penal Code read with Section 52 of the IPO Act - whether the sentences awarded to the Appellant under Indian Penal Code and the IPO Act should run "concurrently" or "consecutively"? - HELD THAT:- The expressions "concurrently" and "consecutively" mentioned in the Code are of immense significance while awarding punishment to the accused once he is found guilty of any offence punishable under Indian Penal Code or/and of an offence punishable under any other Special Act arising out of one trial or more. It is for the reason that award of former enure to the benefit of accused whereas award of latter is detrimental to the accused's interest. It is, therefore, legally obligatory upon the Court of first instance while awarding sentence to specify in clear terms in the order of conviction as to whether sentence awarded to the accused would run "concurrently" or they would run "consecutively".
The issue as to in which circumstances the Court should direct the sentences to run "concurrently" or "consecutively" after the accused is convicted of more than one offence in one trial or more has been the subject matter of several cases in this Court and thus remains no more res integra. This issue was considered by this Court while considering the scope of Sections 31, 427 and 428 of the Code and Section 71 of Indian Penal Code.
Reliance placed in the decision of this Court in Chatar Singh v. State of M.P. [2006 (11) TMI 714 - SUPREME COURT] and State of Punjab v. Madan Lal [2009 (3) TMI 912 - SUPREME COURT], and lastly recently in Manoj @ Panu v. State of Haryana [2013 (12) TMI 1732 - SUPREME COURT], wherein this Court taking recourse to Section 31 of the Code directed in somewhat similar facts that the sentences awarded to the accused to run "concurrently" in place of "consecutively".
Thus, in the light of powers available Under Section 31 of the Code, it can be held that both the sentences awarded to the Appellant in the case at hand should run "concurrently" and this is done by invoking Section 31 which enables the Court to so direct.
This is a fit case where we can direct the sentences awarded to the Appellant to run "concurrently" for the reasons that firstly, the case out of which this appeal arises relates to the year 1993 and is pending for a long period of 21 years; secondly, the two sentences, which were imposed on the Appellant, arose out of one offence of theft punishable Under Section 381 Indian Penal Code tried in one trial; thirdly, the provisions of Section 52 of the IPO Act were required to be invoked against the Appellant because he was the postal employee; fourthly, the Gold Chain was long recovered and also handed over to the person concerned; fifthly, the Appellant has already been dismissed from services due to impugned conviction; and lastly, the Appellant has been suffering from heart ailment since long, as is proved by documents filed along with the Appellant's affidavit 03.11.2014.
The conviction and sentences awarded to the Appellant by the courts below for the offences punishable Under Section 381 of Indian Penal Code and Section 52 of the IPO Act are upheld. However, it is directed that both the sentences awarded to the Appellant under Indian Penal Code and IPO Act would run "concurrently" - Appeal allowed in part.
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2015 (1) TMI 1479
Capital gain computation - adoption of the value of the property taken for the purpose of stamp duty as sale consideration - determination of the fair market value of the land sold in the light of provisions of section 50C - difference between the valuation declared and fair market value estimated by the DVO - HELD THAT:- CIT(A) has noticed the irregularities committed by AO by not making reference to the DVO on the objections raised by the assessee with regard to the fair market value of the property and directed the Assessing Officer to make reference to the DVO as per provisions of section 50C(2) of the Act and consequently the DVO has determined the fair market value and report was submitted to the ld. CIT(A) by the Assessing Officer.
We do not find any infirmity or illegality in this exercise, as effort was made by the ld. CIT(A) to make compliance of the provisions of the Act in order to determine the fair market value of the land. - difference in the estimated value by the DVO and the sale consideration declared by the assessee was only 11.9% of the value estimated by the DVO. Since the difference was nominal, CIT(A) has directed the Assessing Officer to adopt the sale consideration declared by the assessee. In this direction also, we do not find any infirmity or illegality. We, therefore, having agreed with the order of the ld. CIT(A), confirm his order. -Decided against revenue.
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2015 (1) TMI 1478
Validity of Reopening of assessment u/s 147 - ITO-3, Kashipur jurisdiction over the assessee - assessee has took a plea that the Income Tax Officer-III, Kashipur has no jurisdiction over the assessee, as the assessee is an old Income-tax assessee which is under the jurisdiction of Income Tax Officer-IV(3), Lucknow - HELD THAT:- Since the Assessing Officer having jurisdiction over the assessee was Income Tax Officer-IV(3), Lucknow, notice issued under section 148 of the Act by Income Tax Officer-III, Kashipur is not a valid notice, therefore, the assessment framed consequent thereto is not valid and deserves to be annulled.
Thus the notice under section 148 of the Act is not valid, as it was issued by an Officer having no jurisdiction over the assessee and therefore the assessment framed consequent thereto deserves to be annulled. - Decided against revenue.
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2015 (1) TMI 1477
Dishonor of Cheque - Suspension of substantive order of sentence - imposition of condition to deposit 25% of the amount of the cheque by the petitioner - HELD THAT:- This Court is of the opinion that the Sessions Court has committed an error by imposing the condition to deposit 25% of the cheque amount while suspending the substantive order of sentence. The accused is having a statutory right to prefer an appeal before the Sessions Court, and when there is no order of grant of compensation passed by the learned Judicial Magistrate First Class in favour of the complainant, the Sessions Court could not have imposed the condition to deposit 25% of the cheque amount while suspending the substantive order of sentence.
From the decision of the Honourable Supreme Court in Dilip S. Dahanukar Vs. Kotak Mahindra Co. Ltd. and another [2007 (4) TMI 667 - SUPREME COURT], it is clear that the petitioner accused is having a statutory right to prefer appeal before the Sessions Court. When such appeal is preferred, it is the duty of the learned Sessions Court to release the concerned accused on bail by suspending the sentence under Section 389 of the Criminal Procedure Code, 1973 on certain terms and conditions, which are not harsh.
In the present case, it is clear from the record that the petitioner was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. However, while suspending the sentence, a condition was imposed on the petitioner to deposit 25% amount of the cheque amount. From the facts of the case, it appears that the petitioner is not in a position to fulfil the said condition, and therefore, the said condition is too harsh. The Sessions Court while suspending the sentence could not have imposed such a condition, which is not possible for the accused to comply. If the accused is unable to comply with the said condition, the result would be that the said accused has to be sent to jail for non-fulfilment of the said condition, and therefore, the condition imposed by the Sessions Court of depositing 25% of the cheque amount is required to be quashed and set aside.
In the present case, it is clear that while suspending the substantive order of sentence of the present appellant, the learned Sessions Court imposed a condition to deposit 25% of the cheque amount, which can be said to be a harsh condition as averred and contended by the petitioner in the petition.
Petition allowed.
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2015 (1) TMI 1476
Input Tax Credit on turnover fixed by the Tribunal - HELD THAT:- The case may be examined and the amount of tax may be recomputed in accordance with law within a period of two months from the date a certified copy of this order being placed before the assessing authority.
The revision stands disposed of.
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2015 (1) TMI 1475
Genuineness of gift - accommodation entries - gift cannot be accepted as such to be genuine, merely because the amount has come by cheque or draft through banking channels, unless the identity of the donor, his creditworthiness, relationship with the donee and the occasion are proved - HC maintain the addition of the gift amount, but disallow the assumed addition of 10 per cent. on premium paid to middlemen - HELD THAT:- Delay condoned.
We do not find any legal and valid ground for interference. The Special Leave Petitions are dismissed.
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2015 (1) TMI 1474
Assessment of trust - surplus distributed among the members - whether 95% of surplus of the assessee trust distributed among its members can be brought to tax at maximum marginal rate in the hands of the assessee treating the assessee as AOPs? - HELD THAT:- Issue decided in favour of assessee as in [2014 (8) TMI 1221 - ITAT CHENNAI] as relying on [2013 (11) TMI 1270 - ITAT CHENNAI] upholding the order of CIT (A) in holding that 95% of surplus distributed among the members is not liable to be taxed.
assessee trusts and the SHGs are inter-related and they are all concerns governed by the principles of mutuality. The 95 per cent surplus distributed by the assessee trusts to the various SHGs working under them is nothing but the income of those SHGs themselves. It is not something that those groups are getting from outside by way of income. It is the fruit of their efforts. After finalising the accounts and computing the surplus, the profits are divided among those members, whose shares are determinate and whose roles are well defined.
We endorse the view of the CIT (Appeals) that all these SHGs working under the assessee trusts are concerns governed by the principles of mutuality and accordingly the 95 per cent of surplus distributed among them are not in the nature of income.
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2015 (1) TMI 1473
Revision u/s 263 by CIT - as per CIT unexplained cash credits in the capital account cannot be considered as business income arising out of the assessee’s contract activities - assessee has shown huge expenditure under various heads in the profit and loss account. The Assessing Authority should have probed into these and critically examined the correctness of the same. There is nothing on record to show that the AO has gone through any material in respect of such transactions - HELD THAT:- The material on record discloses that, ₹ 35.38 crores is the gross bill. The assessee is working under the main contractor M/s IVRCL. They deducted a sum of ₹ 22.99 crores from the bill of the assessee on account of the materials supplied and expenditure incurred by them. Only a sum of ₹ 12.38 crores was actually paid to the assessee. On that basis a sum of ₹ 4,95,970/- was the income offered by the assessee in the return of income. However, the Assessing Authority after scrutiny of the entire material on record added a sum of ₹ 80,64,764/-. Thus, the total income was determined at ₹ 85,60,730/-. The said income with reference to the contract receipts of ₹ 13.37 crores works out to 6.4%. Therefore, the contention that it works out to 0.12% is erroneous.
Even in respect of the main contract, in respect of civil contracts 8% is taken normally as the income earned out of such contracts. When such a contractor gives the work to a sub contractor normally about 5% is taken as the income of the contractor. In the instant case it works out to 6.4%. The tenor of the order of the Commissioner under Section 263 discloses that, because the net profit shown in the Profit and Loss Account was only ₹ 4.63 lakhs which works out to 0.12% the proceedings are initiated.
Factually it is incorrect. In those circumstances, in the absence of any other material which was before the Commissioner he was not justified in recording a finding that the assessing authority has not applied its mind, not verified the expenses, not verified the receipts and looked into the book and, therefore, a case for interference under Section 263 is made out cannot be accepted. - Decided in favour of the assessee and against the revenue.
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2015 (1) TMI 1472
Taxation of capital gains on sale of agricultural land pertaining to assessee - determine the sale price as income of assessee - HELD THAT:- Assessee was not aware about the statement given by the said Smt. Bhagya Lakshmi and others. It is also noticed that assessee has sold the agricultural property to one Mr. T. Chandra Sekhar and Shri V. Papaiah being the vendors. How these two are connected with Smt. Bhagya Lakshmi in the purchase of the so called 15.14 acres is not coming out of the assessment order. Not only that the basis of determining the price is also not forthcoming from the orders. In fact assessee asked for copies of the documents relied on by the AO which are also denied to him as stated above.
As perused the sale deed dt.17-11-2006. It is clear from the recitals that property is ancestral property devolved on assessee by way of partition. In that case, the status of assessee, being HUF property or individual also required to be determined. Not only that, 1/4th of the share of the property, as can be seen from the recitals of the sale deed, pertain to his son who also became vendor No.2.
When the sale deed is very clear about respective shares, how the entire amount can be brought to tax in the hands of assessee was also not explained by the AO - document of sale indicates that the property sold was agricultural land. Whether sale of agricultural land can be considered as a capital asset or not also required to be considered. Principles of natural justice have not been followed in this case, we are of the opinion that assessee should be given due opportunity.
Since assessee seems to be an illiterate person, it is the duty of the officer to explain the provisions of law, so that the person can follow the proceedings. It is all the more necessary that Assessing Officer should follow the provisions of law before raising a demand against assessee - CIT(A) dismissed the appeal without considering any of the contentions or issues involved in the assessment - assessee should be given due opportunity. AO should determine the correct status, shares of the assessee and the price he received so that correct capital gains can be brought to tax. AO is directed to examine all the issues and then only complete the assessment as per facts and provisions of law. Assessee is free to raise any objections or contentions involved in the assessment procedure. Appeal is allowed for statistical purposes.
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2015 (1) TMI 1471
Dishonor of Cheque - legally enforceable debts/liabilities or not - trial court rejected the petitioner's prayer for sending the cheques to the hand-writing expert - section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- It is abundantly clear even if an incomplete negotiable instrument, signed by the drawer delivers to anyone, it authorizes the holder thereof to make or complete the same as the case may be and also the person so signing shall be liable upon such instrument, in the capacity in which he signed the same to any holder thereof in due course for payment of such amount. Therefore, even if a bill of exchange, which includes a cheque, if delivers to any person singed by the drawer, no payment against such cheque can be denied on the plea the same was delivered to the person was partially blank. Since the signature in the cheque has not been disputed there is no need for verification of the handwriting by which the name of. the payee and the amount has been filled up.
It appears that the proceeding is pending since 2012 for more than 2 and half year although it is the legislative intent that the court shall make all endeavours to conclude the trial relating to such offence within six months from the date of filing of the complaint. This case has already reached the stage of examination of the accused under section 313 Cr.P.C.
The criminal revision has no merit and accordingly stands dismissed.
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2015 (1) TMI 1470
Block assessment - non appearance by assessee - HELD THAT:- At the time of hearing of these appeal none appeared on behalf of the assessee. The assessee had filed adjournment application. But, in the adjournment application, there was no sufficient cause and moreover, this appeal is about 10 years old; therefore, the same is rejected. In the circumstances, it appears that the assessee is not interested in pursuing the appeal, and no useful purpose would be served by adjourning the hearing.
Considering these facts and keeping in mind the provisions of Rule 19(2) of the ITAT Rules, as were considered in the case of Multiplan India [1991 (5) TMI 120 - ITAT DELHI-D] and in view of the decision of Estate of Late Tukoji Rao Holkar,[1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT], we dismiss the appeal in limine. However, if the assessee on a later stage gives explanation in regard to its non-appearance before the Tribunal on the date of hearing before the Tribunal by filing a Miscellaneous Application as per the ITAT Rules and if the Bench is so satisfied the appeal of the assessee can be recalled for hearing on merit.
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2015 (1) TMI 1469
Ex-parte appeal decided by CIT-A - Violation of principle of natural justice - due service of notice or not? - HELD THAT:- We are unable to see any observation or conclusion of the CIT(A) that the notice issued to the assessee on 15.10.2012 for the date of hearing on 6.11.2012 was duly served upon the assessee and despite due service, neither the assessee nor his representative attended the proceedings nor any request for adjournment was made on behalf of the assessee. In this situation, it can safely be presumed that the CIT(A) ignored to appreciate this fact whether the last notice dated 15.10.12 was really served upon the assessee or not. In this situation, ex parte order passed by the CIT(A) is clearly violative of principles of natural justice.
The present case is squarely covered in favour of the assessee by the order of the ITAT Ahmedabad Bench ‘C’ in the case of Gujarat Themis Biosyn Ltd. [1999 (8) TMI 109 - ITAT AHMEDABAD-C], hence, appeal of the assessee on this legal issue is allowed and thus, we hereby set aside the impugned order of the CIT(A) and direct the CIT(A) to dispose of the appeal of the assessee afresh after allowing proper opportunity of hearing in accordance with law. Appeal of the assessee is deemed to be allowed for statistical purposes
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2015 (1) TMI 1468
Agricultural income - denial of exemption - conversion of foundation seeds into certified seeds - assessee supplying foundation seeds to farmers owning land, who under directions issued by company cultivate such seeds and get compensation for it - HC held that conversion of foundation seeds to certified seeds as manufacturing activity, assessee would not get benefit of total exemption u/s 10(1) of the Act. - Decided against the Assessee by holding as business income - HELD THAT:- Delay condoned. Leave granted in all the SLPs.
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2015 (1) TMI 1467
Murder - dowry - Homicidal death - Chargeability and punishment - case of the prosecution is that two months prior to her death on one of her visits to her parental home, the deceased informed her two brothers of cruelty connected with dowry demands meted out to her by her husband and his family members - HELD THAT:- It is already empirically evident that the prosecution, ubiquitously and in dereliction of duty, in the case of an abnormal death if a young bride confines its charges to Section 304B because the obligation to provide proof becomes least burdensome for it; this is the significance that attaches to a deeming provision. But, in any death other than in normal circumstances, we see no justification for not citing either Section 302 or Section 306, as the circumstances of the case call for. Otherwise, the death would logically fall in the category of an accidental one. It is not sufficient to include only Section 498A as the punishment is relatively light. Homicidal death is chargeable and punishable under Sections 302 and 304B if circumstances prevail triggering these provisions.
Some doubts remain on the aspect of presumption of innocence, deemed culpability and burden of proof - Even though there may not be any Constitutional protection to the concept of presumption of innocence, this is so deeply ingrained in all Common Law legal systems so as to render it ineradicable even in India, such that the departure or deviation from this presumption demands statutory sanction. This is what the trilogy of dowry legislation has endeavoured to ordain.
The two prosecution witnesses, on whom the entire episode is predicated, are PW 4 and PW 7. The Complainant/PW 4-Angrez Singh appears to be the eldest in the family as he has stated that his brother, i.e. the father of the deceased, had already died. He has stated that sufficient kanyadan was given at the time of marriage; that two months prior to her death the deceased had, on one of her visits to their home, conveyed to her brothers that her husband and his family were harassing her for dowry, especially a motorcycle and fridge - The Complainant has admitted that there were no demands for dowry either at the betrothal or at the time of marriage. Her maternal uncle Gurdip Singh avowedly fixed/mediated/arranged the unfortunate marriage, yet he was not apprised of the dowry demands by Angrez Singh. He has also denied that any panchayat was convened regarding these dowry demands, whereas Sukhwant Singh PW 7, the real brother of the deceased, has categorically stated in cross-examination that a panchayat comprising both Angrez Singh and Gurdip Singh and several others had held deliberations.
The fundamental and vital question that the Court has to ask itself and find a solid answer to, is whether this evidence even preponderantly proves that the Appellant had treated the deceased with cruelty connected with dowry demands. It is only if the answer is in the affirmative will the Court have to weigh the evidence produced by the Appellant to discharge beyond reasonable doubt, the assumption of his deemed guilt. We have not lost sight of the fact that the deceased was pregnant at the time of her suicide and that only extraordinary and overwhelming factors would have driven her to take her life along with that of her unborn child. The fact remains that she did so - Added to this are the inconsistencies and contradictions between the statements of PW 4 and PW 7 with regard to the panchayat and the presence of and knowledge of Gurdip Singh. It is for these reasons that we are of the opinion that the prosecution has not shown/presented and or proved even by preponderance of probabilities that the deceased had been treated with cruelty emanating from or founded on dowry demands. It is in the realm of a possibility that the ingestion of aluminium phosphate may have been accidental.
In his examination under Section 313 Code of Criminal Procedure the accused has proffered details of his defence. This is not a case where he has merely denied all the questions put by the Court to him. As already stated above, because of the insufficiency or the unsatisfactory nature of the facts or circumstances shown by the prosecution, the burden of proving his innocence has not shifted to the Appellant, in the present case - the impugned judgment convicting and punishing the Appellant is set aside - Appeal allowed.
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