TMI Blog2010 (7) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... - SUDANTHIRAM T. J. Judgment: The petitioner in all these criminal revision cases is one and the same. She is the accused in E. O. C. C. Nos. 180 of 1988, 1645 of 1989 and 1646 of 1989 on the files of the learned Additional Chief Metropolitan Magistrate, (E.O-I), Egmore, Chennai. Complaints have been filed by the respondent against the petitioner under section 276C(1) of the Income-tax Act, 1961 read with section 193 of the Indian Penal Code. 2. The case of the complainant in brief is that a raid was conducted in the premises of the accused/petitioner herein and during the raid, two agree-ments for construction of a building dated February 4, 1985, were found. One of the agreements shows the total value as Rs. 6,63,250 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two agreements may not lead to a presumption that the petitioner wilfully attempted to evade the tax. Even otherwise, it must be said that the accused is at the stage of preparation and not reached the stage of attempting. Learned counsel for the petitioner relied on the decisions of this court reported in N. Srinivasan v. Uma Rani [2004] 270 ITR 77 and A. Radhakrishnan v. ITO [2002] 253 ITR 676 (Mad) ; [1991] L.W.(Crl.) 87. 5. Per contra, learned special public prosecutor for income-tax cases would submit that after tracing out the two agreements with different values, the revision petitioner/accused admitted that the second agree-ment was made for the lower amount for the purpose of evading income-tax, though the actual cost for const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the petitioner under section 276C of the Income-tax Act. Though the learned special public prosecutor for IT cases submitted that subsequently, three income-tax returns were filed by the petitioner relating to the assessment years 1985-86, 1986-87 and 1987-88 and on that basis, three complaints have been filed and this court is unable to accept such contention. The com-plainant ought to have filed only one complaint against the petitioner. 9. It is to be seen whether as per case of the complainant, prima facie charge can be framed for the offence under section 193 of the Indian Penal Code, which is as follows: "Whoever intentionally gives false evidence in any stage of a judi-cial proceeding, or fabricates false evidence fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be imposable on him under any other provision of this Act, be punishable with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and shall, in the discretion of the court, also be liable to fine. Explanation.-For the purposes of this section, a wilful attempt to evade any tax, penalty or interest chargeable or imposable under this Act or the payment thereof shall include a case where any person ; (i) has in his possession or control any books of account or other documents (being books of account or other documents relevant to any proceeding under this Act) containing a false entry or statement ; or (ii) makes or causes to be made any false entry or statement in such boo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. Though the line of demarcation between `preparation' `attempt' may be thin, before a person can be prosecuted for an offence punishable under section 276C(1) of the Act, there must be material available, that the stage of preparation had been crossed and attempt to evade wilfully, payment of tax, was the only conclusion possible, on facts." 14. Therefore, the prosecution case was that the petitioner in that case, who was legally by express provisions of law to state the truth and make a declaration regarding the market value of the property having failed to do so, has reference to the alleged declaration of the petitioner in Form 37-G prescribed under rule 48G of the Income-tax Rules. 15. In this particular case, there is a specif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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