TMI Blog2012 (2) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... MEHTA, J. 1. The present petition under Section 482 CrPC assails the order of learned ASJ dismissing the revision petition filed on behalf of DCIT vide order dated 1.9.2008, whereby the learned ASJ has affirmed the order of learned ACMM dated 8.10.2007 discharging the respondents. 2. The brief facts necessitating the present petition under Section 482 CrPC are that the Income Tax Department on the basis of some complaints by some approved trust/institutions that some persons were collecting donations in their names without authority and worked scrupulously aiding the donors in siphoning off the donated money back to them in dubious ways, after retaining a part of the alleged donation as commission. Search operation under Section 132 of the Income Tax Act (hereinafter referred to as Act ) were conducted by the Income Tax Authority on 13th September, 1983 at the residential premises of one Sh. Vipin Mehra and one Sh. Prem Prakash. The investigation revealed that the modus operandi adopted for this purpose was that the donations were purportedly made in the names of trusts and institutions which had been approved either for the purpose of weighted deduction under Section 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d M/s. Varun Enterprises is a partnership in which major share is held by one Deepak Singh and Family (HUF) and Deepak Singh is the son-in-law of accused Charat Ram. The entire amount of Rs. 15 lakhs credited to the said account of M/s. India Investment Co. was withdrawn by bearer cheques between April 28, 1983, and May 2, 1983, by accused Vipin Mehra. 5. A different modus operandi was adopted in respect of the other alleged donation in the sum of Rs. 15 lakhs purportedly made in the name of P.M.F. and for this purpose, a banker's cheque bearing number F897240 dated June 29, 1983, was purchased from State Bank of Hyderabad, Kasturba Gandhi Marg, New Delhi, and consideration for the same was tendered by accused/ Respondent No. 1 company, through cheque bearing No. 236606 dated June 29, 1983. An application for the purchase of banker's cheque made to the bank was originally for the issue of banker's cheque in favor of one M/s. Astra Commercial P. Ltd. but was subsequently modified under the signatures of accused Respondent No. 2, N. R. Dongre, and accused Vinod Singhania, Respondent No. 7, and the bank was requested to issue the cheque in favor of P. M. F. The proceeds of the banke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... June 2, 1984, as the Department had by that time unearthed the indulging of the accused in the aforesaid nefarious activities by conducting raids, searches and seizure of various documents. 7. At the outset, the learned counsel for respondents objected to the maintainability of the petition submitting that though the petition was preferred under section 482 Cr.P.C. but the petition, in fact, was a second revision against the order of MM discharging the respondents under section 276-C of the Income Tax Act. He submitted that the second revision being barred under section 397(3) Cr. P.C. was not maintainable in this Court. 8. There was, in fact, no dispute with regard to the proposition that there was statutory bar contained in section 397(3) Cr.P.C. for the second revision petition. The power of this Court and that of the Court of Sessions, so far as a revision is concerned, are concurrent. The intention of the Legislature under section 397(3) Cr.P.C. is definite and the scheme therein is unambiguous and clear. Sub section (3) does not permit the repetition in exercise of jurisdiction of revision under section 397(1) Cr.P.C. It curtails the chance availing second remedy and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even the penalty proceedings under Section 271 C were deleted. It was also submitted that in any case, the entries in the books of accounts, regularly kept in the course of business alone were not to be sufficient enough to charge any person in terms of provisions of Section 34 of the Evidence Act. In this regard, it was also submitted that the learned ASJ in the impugned order dated 1.9.2008 while dismissing the revision petition of the department also observed that the acts of the respondents at the most can be termed as preparation and not an attempt to commit the offence and that since the preparation was not an offence under the Income Tax Act, no offence was made out against the respondents. 11. On the other hand, the contentions of learned counsel for the petitioner was that the return of the income tax for the assessment year 1984-85 was filed by the respondents on 2.6.1984, whereas the search was conducted on 13.9.1983. It was submitted in this regard that the respondents had sufficient time to manipulate their accounts in order to evade their liability and they had shown in the income tax return the aforesaid amount of Rs.25 lac as recoverable. It was submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Both the courts below have failed to appreciate that the provisions of Income Tax Act, 1961 have overriding effect over the general criminal law of the land. The object of Income Tax Act is to prevent evasion of income tax and punish the offenders under Chapter XXII of the Act. As per explanation (iv) to Section 276 (c)(ii) of the Act, a willful attempt to evade any tax shall include a case where a person causes any other circumstances to exist which will have the effect of enabling such a person to evade tax imposable under the Act. Likewise the case would also be falling within deeming provisions of Clause (i) of explanations which provides the possession or control of books of accounts or other records containing false entries or statement as amounting to willful attempt to evade tax. The said clauses of Explanation are sufficient for continuation of the prosecution against the respondents under the Act. In the given facts and circumstances, the findings of learned ASJ that it was only a preparation is apparently ridiculous. 15. It is settled proposition of law that at the stage of framing of charges it is not obligatory for the Judge of trial to consider any detail and wei ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
