TMI Blog2020 (2) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... rder in favour of the second respondent, which warrants interference of this Bench. It is not proved that all the seized properties were assessed in the name of the second respondent. Therefore, the order passed by the Single Judge is set aside to that extent alone. Hence the second appellant is directed to verify as to whether the seized assets have been shown in the returns filed by the wife of the first respondent at any point of time. If it is so, the second appellant is directed to pass orders in accordance with law, after verifying the returns filed by the wife of the first respondent, if not, the appellants are directed to take action against the wife of the first respondent in accordance with law for not showing assets in her returns and not paying the income tax. Further the Department of Commercial Tax and the Department of Wealth Tax, are directed to take action against the wife of the first respondent for selling the products without any bill and amassing wealth. - W.A.No.1183 of 2018 And C.M.P.No.9440 of 2018 - - - Dated:- 3-2-2020 - Mr. Justice N.Kirubakaran And Mr. Justice P. Velmurugan For the Appellants : Mr.A.P.Srinivas, Senior Standing Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... US Dollors, Gold Biscuits, Fixed Deposits etc., were seized and criminal proceedings was also initiated, which ended in conviction. But, subsequently, the wife of the first respondent had retracted her earlier statement saying that all the seized articles belong to her and not to her husband and hence on an appeal filed by the first respondent, he was acquitted by this Court, which was also confirmed by the Hon'ble Supreme Court. Therefore, refund of tax was rightly made in favour of the first respondent as per Section 132-B (3) of the Income Tax Act, wherein, the Act clearly says that the assets have to be discharged forthwith from whose custody it was seized and there is no reference about the original owner of the assets. The Department has rightly refunded the assets in favour of the first respondent and further, there is no mentioning either in the order of this Court in the criminal appeal or in the order of the Hon'ble Supreme Court, to whom the assets have to be refunded. The wife of the first respondent has filed an affidavit stating that all the seized articles were acquired by her own through sale proceeds of M/s.Silver Shoes Private Limited and M/s.Southern Rim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Supreme Court. 5 Heard the learned counsel appearing on either side and perused the materials available on record. 6 The main contention raised by the appellant Department is that even though, the criminal case filed against the first respondent ended in conviction and subsequently, this court acquitted the first respondent, which was also confirmed by the Hon'ble Supreme Court, there is no specific direction or order either by this Court or by the Hon'ble Supreme Court regarding refund of the assets and further the appellants were not parties to the criminal proceedings. The learned counsel for the respondents contended that it was observed in the criminal appeal that the first respondent and his wife were jointly living in the house, where the seizure had taken place and the wife has given statement before the Assistant Director of Income Tax (Investigation) Unit I, Department of Vigilance and Anti-Corruption stating that all the properties belonged to her and she earned the same through sale proceeds of three Companies owned by her and the Hon'ble Supreme Court has also accepted the same. 7 On a careful reading of the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst respondent has not stated that all the properties are belong to the Company and in order to escape from the clutches of law and to safeguard her husband, she has given that statement stating that all the properties belong to her and not to her husband and she has shown some source of income. If at all based on the decision of the Hon'ble Supreme Court, the learned Single Judge ought to have directed the appellants to pass refund orders in favour of the wife of the first respondent, but, without any materials or sufficient proof, refund order cannot be passed in the name of the second respondent. The learned Single Judge has failed to consider the observations made by the Hon'ble Supreme Court in Crl.A.No.480 of 2002 dated 07.12.2005 reported in (2006) 1 SCC 420 and the relevant portion of the judgment is extracted hereunder: 15. We have heard both the learned counsel at length. The basic question that emerges in the present case is whether the accused could be saddled with all the unaccounted money at his hand or not. It is the admitted position that both the husband and wife were living together. The wife was running three concerns though those concerns wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter that the initial burden lies on the prosecution. In the case of C.S.D.Swami v. The State reported in AIR 1960 SC 7, this Court has taken the view that in Section 5(3) of the Prevention of Corruption Act, 1947 a complete departure has made from the criminal jurisprudence still initial burden lies on the prosecution and in that context it has been observed as follows : Section 5(3) does not create a new offence but only lays down a rule of evidence, enabling the court to raise a presumption of guilt in certain circumstances- a rule which is a complete departure from the established principle of criminal jurisprudence that the burden always lies on the prosecution to prove all the ingredients of the offence charged, and that the burden never shifts on to the accused to disprove the charge framed against him. 16. Therefore, the initial burden was on the prosecution to establish whether the accused has acquired the property disproportionate to his known source of income or not. But at the same time, it has been held in State of M.P. Vs. Awadh Kishore Gupta that accused has to account satisfactorily for the money received in his hand and satisfy the court that his ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso admitted that the recovered seized assets belong to her. Therefore, whether she has been prosecuted for the above non-disclosure or not is not brought before this Court. 10 In fine, however, the learned Single Judge failed to consider the above and directed the appellants to pass refund order in favour of the second respondent, which warrants interference of this Bench. It is not proved that all the seized properties were assessed in the name of the second respondent. Therefore, the order passed by the Single Judge is set aside to that extent alone. Hence the second appellant is directed to verify as to whether the seized assets have been shown in the returns filed by the wife of the first respondent at any point of time. If it is so, the second appellant is directed to pass orders in accordance with law, after verifying the returns filed by the wife of the first respondent, if not, the appellants are directed to take action against the wife of the first respondent in accordance with law for not showing assets in her returns and not paying the income tax. Further the Department of Commercial Tax and the Department of Wealth Tax, are directed to take action against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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