9911796707
TMI Blog2025 (3) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... r the parties. 3. From the examination of the impugned judgement of the learnd ITAT, it is manifest that the reasoning contained therein to conclude that the notice under section 148 of the Act, issued under the erstwhile regime suffers from the vice of "reason to suspect" rather than "reason to believe" is predicated on the judgement of the Hon'ble Supreme Court in a criminal case. It would be apposite to extract the relevant paragraphs of the impugned order which read thus: "6. On perusal of the reasons recorded for reopening the assessment reproduced supra, we find that there is no dispute that the amounts that stood credited in the bank account of the assessee were received from the related entities of the assessee company. Similarly there is absolutely no dispute to the fact that the amounts that went outside the bank account of the assessee company were also invested with the related entities of the assessee company. Assessee being engaged in the business of financing and leasing , obviously had to receive monies and make investments in various entities, This is what is done by the assessee company. The fruits of these investments would get fructified as income only in fut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the deceased was found in the following afternoon. Postmortem examination of the body of the deceased was conducted on 23rd October, 2009 by Dr. Ullhas Gonnade (P.W.11) who observed as many as 24 injuries on the deceased. According to P.W.11, after commission of murder, the body of the deceased was burnt and his death was homicidal in nature. It was further the case of the prosecution that an electricity bill in the name of one, Alakh Verma was found from the body of the deceased, on the basis of which the police proceeded with further investigation. In pursuance of the disclosure statements of the accused persons, seizure was effected and the police concluded that the deceased was murdered by the Appellant and that the body was then taken to the Baba Balak Nath temple with the help of the other accused persons where an attempt was made to burn the body. 2.3 At the conclusion of the investigation, a charge-sheet came to be filed in the Court of Judicial Magistrate First Class, Durg. Since the case was exclusively triable by the Sessions Court, the same came to be committed to the Sessions Judge. 2.4 The accused persons were examined under Section 313 of the Code of Crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has failed to prove that the dead body found in the garbage was that of Shiva. 5. On the contrary, Shri Sumeer Sodhi submitted that both the Trial Judge and the High Court, upon correct appreciation of evidence, have found the accused-appellant guilty of the charges levelled against him. It is submitted that, as per the FSL report, human blood was present on the dagger which was recovered at the instance of the present appellant. It is further submitted that the recoveries made on the basis of the Memorandum under Section 27 of the Indian Evidence Act, 1872 (hereinafter referred to as "the Evidence Act") would establish the guilt of the accused appellant beyond reasonable doubt. He, therefore, submits that no interference would be warranted with the impugned judgment in the facts and circumstances of the present case. 6. With the assistance of the learned counsel for the parties, we have scrutinized the evidence on record. 7. Undoubtedly, the prosecution case rests on circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence has very well been crystalized in the judgment of this Court in the case of Sharad Birdhichand Sarda vs. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciple that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. 8. It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The Court holds that it is a primary principle that the accused 'mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uor. They both had consumed liquor. After having dinner, his sister-in-law, her daughter along with the baby went to bed in the middle-room of the house. He slept on the cot. He asked Shiva to sleep on the spread bed on the floor. It is the prosecution case that, at about 10.30 p.m., the appellant gave several blows to Shiva with a dagger. Thereafter, he wrapped the dead body of Shiva in a blanket and a homemade mattress and called his friend Chandan Sao. Thereafter, they broke the lock of the rickshaw parked near Chawni Chowk and took the rickshaw to the house from Chawni Chowk for disposing off the dead body. Thereafter, the appellant along with other accused persons lifted the dead body of the deceased and placed the same on the rickshaw. The rickshaw was then taken to the garbage dumping ground where he threw the dead body. Thereafter, he concealed the dagger in the garbage scattered inside the boundary wall. Following which, he again went to the place where he had thrown the dead body and burnt the clothes wrapped around the dead body and came back to his sister-in law's house. 13. The aforesaid story is narrated in the Memorandum of the appellant under Section 27 of the Evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connected with the murder of the deceased by the accused. Thus, we find that only on the basis of sole circumstance of recovery of blood-stained weapon, it cannot be said that the prosecution has discharged its burden of proving the case beyond reasonable doubt. 20. As already discussed hereinabove, merely on the basis of suspicion, conviction would not be tenable. It is the duty of the prosecution to prove beyond all reasonable doubt that it is only the accused and the accused alone who has committed the crime. We find that the prosecution has utterly failed to do so. 21. Insofar as the finding of the High Court that the appellant has failed to give any explanation in his statement under Section 313 Cr. P.C. is concerned, we find that the High Court has failed to appreciate the basic principle that it is only after the prosecution discharges its duty of proving the case beyond all reasonable doubt that the false explanation or non-explanation of the accused could be taken into consideration. In any case, as held by this Court in the case of Sharad Birdhichand Sarda (supra), in a case based on circumstantial evidence, the nonexplanation or false explanation of the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of the Hon'ble Supreme Court cannot be ignored. It is apparent that the principles enunciated in the criminal jurisprudence in respect of a proof beyond reasonable doubt was erroneously applied to an issue which was subject of provisions of Income Tax Act. In our opinion, the construction of the words "reason to believe" as construed by the Learned ITAT on the anvil of Raja Naykar (supra), is absolutely erroneous and cannot be made applicable to the present case. 4. Keeping in view that though no substantial question of law with regard to this issue has been framed by this court, however, it is deemed appropriate to frame the following Question of Law: a. Whether the ITAT was not wrong in applying the principles enunciated by the SC in a criminal case where the discharge of burden of proof is beyond reasonable doubt, to the principle of "reason to believe" as provided in section 148 of the Act? 5. It is trite that the concept of "proving beyond reasonable doubt" applies "strictu senso" to penal provisions/statutes. It is also trite that in taxing statutes, in particular, section 148 of the Act, the "reason to believe", must be based on objective materials, and on a reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port the reasoning rendered by the learned ITAT, addressed submissions on the merits of the case, however, we are not persuaded to consider the same. This is for the reason that the learned ITAT misdirected itself in predicating its entire reasoning on an incorrect and inapplicable principle of law, which are confined to purely penal provisions, which is not the case here. Thus, on this error alone the impugned judgement is found to be unsustainable in law. Once the edifice of differentiating "reason to suspect" and "reason to believe" itself is on incorrect application of the principle as explained above, the consequential appreciation on merits too would suffer the same fate. 7. Ergo, we have no hesitation in quashing and setting aside the impugned judgement dated 10.04.2024 passed by the learned ITAT, and we do so. However, we remit the matter to the learned ITAT to consider de novo the appeal of the Revenue on merits including any issue/objections which may arise on law after giving sufficient opportunity to both the parties. The rights and cognitions of the parties are left open. Nothing stated herein shall tantamount to any expression on merits of the case. 8. Accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
