Cr.a/109/2003 Of P.k. Philip Income Tax Officer v. Gujarat Textile Industries

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 109 of 2003 For Approval and Signature:HONOURABLE MR.JUSTICE Z.K.SAIYED ====================================== 1 [Whether Reporters of Local Papers may be allowed ]to see the judgment ?to see the judgment ? 2 To be referred to the Reporter or not ? 3 [Whether their Lordships wish to see the fair copy of ] the judgment ? Whether this case involves a substantial question of 4law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== P.K. PHILIP INCOME TAX OFFICER - Appellant(s) Versus GUJARAT TEXTILE INDUSTRIES & 5 - Opponent(s) ====================================== Appearance : NOTICE SERVED for Appellant(s) : 1,MRS MAUNA M BHATT for Appellant(s) : 1,MRS SWATI SOPARKAR for Opponent(s) : 1 - 4.NOTICE SERVED for Opponent(s) : 5,MS JIRGA JHAVERI ADDITIONAL PUBLIC PROSECUTOR for Opponent(s) : 6, ====================================== CORAM :HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 07/08/2012 ORAL JUDGMENT 1.The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 21.10.2000 passed by the learned Chief Judicial Judicial Magistrate, Valsad at Navsari in Criminal Case No.1268 of 1993, whereby the accused have been acquitted from the charges leveled against them. 2.The brief facts of the prosecution case are as under: 2.1As per the case of the complainant, the accused No.1 was a registered partnership firm and the accused Nos.2 to 5 were partners of accused No.1. The Income-Tax Return was filed by the accused on 29.7.1983 showing the income of Rs.1,72,072/-. The said Income-Tax Return was initially assessed by the Assessing Officer, which was revised by the Commissioner of Income-Tax, Surat and by order dated 31.12.1985, the Commissioner of Income-Tax, Surat cancelled the assessment of the accused No.1 and directed the Assessing Officer to pass final assessment order after adding an amount of Rs.33,722/- which the accused received as refund of excise duty and also the amount of bonus, etc. to be treated as income of the assessee. The Assessing Officer started the assessment proceedings afresh and after hearing accused, the income of accused was assessed at Rs.2,24,396/-. Therefore, the accused No.1 preferred Appeal against said assessment order to the Commissioner of Income-Tax (Appeals) and it was decided that taxable income of the accused No.1 firm was Rs.2,07,789/-. Therefore, the penalty proceedings were initiated against the accused No.1 and in the said proceedings, the Assessing Officer imposed penalty of Rs.23,000/- on the accused by order dated 11.6.1988. Therefore, it appears that the accused had not furnished the true and correct particulars with regard to the income. In this manner, the accused committed offence punishable under Section 276(C)(1), 277 read with Section 278-B of the Income Tax Act. The accused pleaded not guilty to the said charge and claimed to be tried and therefore, the trial Court proceeded with the trial and further statements of accused were recorded. 3.At the end of trial, after hearing arguments on behalf of prosecution and the defence, the learned Magistrate acquitted the respondents of all the charges leveled against them by judgment and order aforesaid. 4.Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Magistrate, the appellant has preferred the present appeal. of accused were recorded. 3.At the end of trial, after hearing arguments on behalf of prosecution and the defence, the learned Magistrate acquitted the respondents of all the charges leveled against them by judgment and order aforesaid. 4.Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Magistrate, the appellant has preferred the present appeal. 5.Learned advocate Mrs. Mauna Bhatt appearing for the appellant submitted that there was prime facie case proved against the accused about the correct and true income. She further stated that once the complainant has proved before the trial Court that the accused proved correct income and true particulars about the income and thereby they have evaded payment of tax. It is presumed under Section 278-E of the Income Tax Act that it has been done by accused deliberately. Therefore, benefits of doubt was not required to be considered by the trial Court in favour of the accused. She prayed to allow the Appeal by quashing and setting aside order passed by the learned Magistrate. 7.Learned advocate appearing for the accused read the evidence and judgment and order passed by the learned trial Court and argued that the learned trial Judge has rightly appreciated the evidence and passed the order of acquittal which is just and proper. Therefore, no interference is required to be called for from this Court. 8.I have perused the record and considered the submissions made by the parties. From the record, it appears that the willful intention on the part of the accused is not proved by the complainant and therefore, it appears that no concealment of income on the part of the accused is proved and the contentions raised by the complainant that the accused gave wrong information by raising bogus evidence is also not proved. Therefore, it can be said that the complainant has not proved alleged offence against the accused. I have perused the judgment and order passed by the learned trial Court and it appears that the trial Court has not committed any error in passing such acquittal order in favour of the accused. 9.I have perused the case of K.C. Builders & Anr. Vs. Assistant Commissioner of Income Tax reported in (2004) 186 CTR Reports 721, and in light of the decision decided by the Hon'ble Supreme Court, this Appeal is not required to be entertained. Hence, same is dismissed. (Z.K. SAIYED, J.) ynvyas