9911796707
TMI Blog2004 (6) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... gether and disposed of by this common judgment. The facts which led to the present appeals could be stated thus: A search under section 132 of the Income-tax Act, 1961, was organised on January 28,1982, in the case of S. Arumugam, No. 35, 1st Main Road, Chromepet, Madras-44, on the strength of warrants issued by the Commissioner of Income-tax, Tamil Nadu-IV. On the day of search, cash of Rs. 32,000 was found at the residence of the assessee and the same was seized since, Thiru. Arumugam could not explain the possession of the cash. On the day of search, two keys were found in the suitcase of Arumugam and he was interrogated about the keys. When interrogated, accused-Arumugam had given a statement that the keys were handed over to him by one Vasudevan, for safe custody. The keys were later identified to be belonging to two bank lockers. One key was found to be that of a locker in the Bank of Baroda, Purasawalkam, and the other belonging to that of a locker at Madras Safe Deposit Co. Ltd., Madras-34. The locker at the Bank of Baroda, Purasawalkam is in the name of Uma Rani, the wife of Arumugam. The locker in the Madras Safe Deposit Co. Ltd., Madras-34, stands in the name of Arumu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the evidence with proper perspective and that the trial court has misdirected itself on every issue and the reasonings for acquittal are unsustainable. It is the further contention that only when the penalty is cancelled under section 273A of the Income-tax Act, criminal proceedings cannot be maintained and in all other instances, the criminal proceedings are well maintainable and the prosecution is to be dealt with independently. Submitting that there was no proper framing of charges on the wilful evasion of tax, the learned Special Public Prosecutor further submitted that notwithstanding the fact that the accused were not assessee, the factual situation in deliberately making a false statement is not effaced which was not taken note of by the trial court. Relying upon in P. Jayappan v. S.K. Perumal, First ITO [1984] 149 ITR 696, the learned Special Public Prosecutor submitted that notwithstanding the termination of the Department proceedings, the criminal proceedings could be continued and that the order of acquittal suffers from perversity and prayed for reversal of the order of acquittal. Laying emphasis upon the order of the Department in the levy of Income-tax and waiver of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed are not unreasonable, then the High Court should not disturb the order of acquittal." Bearing in mind the above principles, we may proceed to consider whether the case in hand is within the above parameters fixed for interference with the order of acquittal. The respondents/accused are alleged to have made false statements during the search under section 132 of the Income-tax Act, and that they have not disclosed the owning of the locker. Thus the gravemen of the indictment against the accused is that (i) they made false statement as to the bank locker; (ii) they have not disclosed the owner of the locker and that there was wilful evasion to pay the tax. By the assessment order under section 132(5) of the Income-tax Act, the Assessment Officer has levied tax, fixing the liability at Rs. 4,56,800. As on the date of order of the Income-tax Officer (dated April 24, 1982) there was no criminal prosecution. It was only thereafter under section 279 of the Income-tax Act, the orders were passed by the Commissioner of Income-tax to launch prosecution against the accused. Exhibit P7, dated November 23,1983, authorises the authorities to file the complaint against the accused-Arumugam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and subsection (4A) thereof stipulates that where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found to be in the possession or control of any person in the course of a search, then it may be presumed that such books of account or other documents belong to such person and that the contents of such books of account are true and that the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person are in that person's handwriting. There is nothing in section 132(4A) which would establish the ingredients of the aforesaid two criminal offences contemplated under sections 276C and 277. By applying the presumption under section 132(4A) of the Income-tax Act, the ingredients of the offence under sections 276C and 277 cannot be said to have been established. Yet another formidable circumstance could be pointed out for not interfering with the order of acquittal-finding of the Income-tax Officer and other authorities that there was no wilful evasion. In fact finding ". . . the assessee had fully co-operated with the Department in inquiries that fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alization of regular assessment proceedings, it cannot be said that the respondents are liable for conviction under section 276C(1) of the Income-tax Act. The search was only under section 132 of the Income-tax Act and the statements are alleged to have been made during the search. The accused were yet to be assessed; they still had time to file the returns. While so, it would be incongruous to prosecute a person for wilful concealment. Absolutely, there is no question of wilful concealment when the accused were yet to be assessed. The order of acquittal does not suffer from any infirmity warranting interference. Placing reliance upon P. Jayappan v. S.K. Perumal, First ITO [1984] 149 ITR 696 (SC), the learned Special Public Prosecutor submitted that the independent nature of department proceedings and criminal prosecution have been affirmed in various decisions. The learned Special Public Prosecutor further submitted that while the criminal court can no doubt come to a different view with regard to the result of any proceedings in the Income-tax Act, it does not however mean that by the result of the proceedings, the prosecution is to be terminated and further contended that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
