Income Tax Officer & Another — v. Sudesh Sharma

CRM No.A959MA of 2014 along with 44 connected petitions1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT.CHANDIGARH CRM Nos. A-959 to 968 MA oft 2014 CRM Nos.1028, 1039, 1050, 1106 to 1114, 1172 to 1174, 1187 to 1189)1192, 1300 to 1306, 1304, 1365, 1394 to 1396, 1525 to 1528-MA of 2014 Income Tax Officer & Another — Petitioners Versus Sudesh Sharma ...Respondent Date of Decision:-10.11. 201 CORAM:HON'BLE MR. JUSTICE MBHINDER SINGH SULLAPresent: Mr. Yogesh Putney, Advocate for the petitionersMehinder Singh Sullar, J(Oral) As identical questions of law and facts are involved, therefore, |propose to dispose of the indicated petitions for leave to appeal, arising outof the similar impugned judgments of acquittal of the same date between thesame parties, vide this common order to avoid the repetition. However, theconspectus of the facts, which needs a necessary mention for deciding thecore controversy, involved in the present petitions, has been extracted trom(1)CRM No.A-959-MA of 2014 |titled as “Income Tax Officer &' Another Vs. Sudesh Sharma” for ready reference in this context. 2 The matrix of the facts and evidence unfolded during the courseof trial, culminating in the commencement, relevant for deciding the instantpetitions for leave to appeal and emanating from the record is that initially,main assessee Ashok Kumar Sharma s/o Bhagwan Dass, Railway contractor(for brevity “the main assessee’) had engaged Sudesh Sharma, Advocaterespondent-accused and supplied him the requisite documents and TDScertificates for the purpose of furnishing his income tax return for the CRM No.A959MA of 2014 along with 44 connected petitionsw) assessment year 1987-88. Consequently, the respondent had filled theincome tax return on behalf of main assessee and claimed a refund ofRs.3395/- on the basis of TDS certificates purported to have been issued bythe Senior Divisional Accounts Officer, Northern Railway, New Delhi. Thecomplainant -Income Tax Officer (for short “ITO”) claimed that in the wakeof verification, the TDS certificates were found not to be genuine and therefund was wrongly claimed by the main assessee. 3Leveling a variety of allegations and narrating the sequence ofevents in detail, in all, according to the complainant, the main assessee haswrongly claimed the refund of Rs.3395/- on the basis of wrong TDScertificates submitted in his income tax return, through respondent-accusedSudesh Kumar, Advocate. In the background of these allegations, thecomplainant ITO had instituted different complaints, not against the mainassessee, but against Sudesh Sharma, Advocate in the manner depicted here-in-above. Similar complaints were also filed by complainant-ITO againstthe respondent-accused with respect to main assessees in other connectedmatters. 4After completion of all the codal formalities, ultimately therespondent-accused was ordered to be summoned, by virtue of summoningorder dated 3.7.1999 by the trial Court. Consequently, he was chargesheeted for commission of offences punishable u/ss 177 and 182 IPC. Thecontents of charge sheets were read over and explained to the respondent, towhich, he pleaded not guilty and claimed trial. Thereafter, the case wasSlated for evidence of the complainant by the trial court, 5Having closed the evidence of complainant, the statement ofthe respondent-accused was recorded as contemplated under Section 313 CRM No.A959MA of 2014 along with 44 connected petitions3 Cr.P.C. The entire incriminating evidence was put to enable him to explainany circumstances appearing on record against him. However, he hadstoutly denied the evidence of complainant in its totality and pleaded falseimplication on account of filing of a civil suit by him against thecomplainant ITO. In support of his defence, he examined Ram Dhan Babbaras DWI and closed his defence evidence| 5Having closed the evidence of complainant, the statement ofthe respondent-accused was recorded as contemplated under Section 313 CRM No.A959MA of 2014 along with 44 connected petitions3 Cr.P.C. The entire incriminating evidence was put to enable him to explainany circumstances appearing on record against him. However, he hadstoutly denied the evidence of complainant in its totality and pleaded falseimplication on account of filing of a civil suit by him against thecomplainant ITO. In support of his defence, he examined Ram Dhan Babbaras DWI and closed his defence evidence| 6 Likewise, taking into consideration the totality of the facts &evidence on record, the respondent-accused was acquitted, by means ofimpugned judgments of acquittal dated 8.5.2012 by the trial Court, TiAggrieved thereby, the appeals filed by the complainant ITOwere dismissed being not maintainable as well, by virtue ofjudgments dated19.9.2013 (Annexure A4) by the appellate Court, 8.sequelly, the complainant-ITO still did not feel satisfied andpreferred the instant time barred petitions for leave to appeal against theimpugned judgments of acquittal, invoking the provisions of section 378(4)Cr.PC along with the applications u/s 5 of The Limitation Act to condonethe delay of 547 days (in main case), which of course, has already beencondoned, by means of separate orders of even date by this Court. That ishow I am seized of the matter. QOHaving heard the learned counsel for the petitioner, havinggone through the record with his valuable help and after bestowal ofthoughts over the entire matter, to my mind, there is no merit and thepresent petitions for leave to appeal deserve to be dismissed in this regard, 10,Ex facie the argument of learned counsel that since there wassufficient evidence on record, so, the trial Court has committed a legalmistake to acquit the respondent-accused, by way of impugned judgments of CRM No.A959MA of 2014 along with 44 connected petitions4 acquittal, is not only devoid of merit but misplaced as well. ll.At the very outset, it may be added here that the jurisdiction ofappellate Court in case of acquittal was determined by the Hon'ble ApexCourt in a celebrated judgment otGhurey LalViState of U.P.)**45+*6SCC 450.Having considered the scope of sections 378, 386 Cr.PC and a line of various judgments on the point, it was ruled as under (Para 75):- ¢79. In light of the above, the High Court and other appellate courts shouldfollow the well settled principles crystallized by number ofjudgments if it 1sgoing to overrule or otherwise disturb the trial court's acquittal: I. The appellate court may only overrule or otherwise disturb the triacourt's acquittal if it has “very substantial and compelling reasons" fordoing So.court's acquittal if it has “very substantial and compelling reasons" fordoing So. A number of instances arise in which the appellate court would have"very substantial and compelling reasons" to discard the trial court'sdecision. "Very substantial and compelling reasons" exist when:"very substantial and compelling reasons" to discard the trial court'sdecision. "Very substantial and compelling reasons" exist when: 1) The trial court's conclusion with regard to thefacts is palpably wrong, il) The trial court's decision was based on an erroneous view oflaw; 111)The trial court's judgment is likely to result in "grave miscarriage ofjustice” justice” iv) The entire approach of the trial court in dealing with the evidence wapatently illegal;patently illegal; Vv) The trial court'sjudgment was manifestly unjust and unreasonable; vi) The trial court has ignored the evidence or misread the materiaevidence or has ignored material documents like dying declarations/report ofthe Ballistic expert, etc.evidence or has ignored material documents like dying declarations/report ofthe Ballistic expert, etc. vil) This list is intended to be illustrative, not exhaustive. 1) The trial court's conclusion with regard to thefacts is palpably wrong, il) The trial court's decision was based on an erroneous view oflaw; 111)The trial court's judgment is likely to result in "grave miscarriage ofjustice” justice” iv) The entire approach of the trial court in dealing with the evidence wapatently illegal;patently illegal; Vv) The trial court'sjudgment was manifestly unjust and unreasonable; vi) The trial court has ignored the evidence or misread the materiaevidence or has ignored material documents like dying declarations/report ofthe Ballistic expert, etc.evidence or has ignored material documents like dying declarations/report ofthe Ballistic expert, etc. vil) This list is intended to be illustrative, not exhaustive. 2. The Appellate Court must always give proper weight and considerationto thefindings ofthe trial court.to thefindings ofthe trial court. 3. If two reasonable views can be reached - one that leads to acquittal, theother to conviction - the High Courts/appellate courts must rule in favourofthe accused. ” 12)Such thus being the legal position and evidence on record, now the short & significant question, though important, which invites animmediate attention of this Court and arises for determination in the instant petitions is, as to whether the trial Court has committed such jurisdictional CRM No.A959MA of 2014 along with 44 connected petitions5 error or patent illegality to acquit the respondent-accused and there aresubstantial and compelling reasons to set aside the impugned judgments ofacquittal by this Court or not ? 13.Having regard to the contentions of learned counsel forpetitioner, to me, the answer must obviously be in the negative, as thecomplainant-ITO has miserably failed in this relevant connection and thepresent petitions for leave to appeal deserve to be dismissed for the reasonsmentioned here-in-below. 14.As is evident from the record that the complainant-ITO claimedthat the main assessee has submitted the income tax return for theassessment year 1987-88 claiming a refund of Rs.3395/- based on false TDScertificate through respondent-accused Sudesh Sharma, Advocate. Strangeenough, the complainant ITO had not filed any complaint against the mainassessee and only arrayed the respondent Advocate as an accused, who wasStated to have submitted the income tax return on his behalf. Meaningthereby, the respondent-accused had only submitted the income tax returnalong with all the pointed documents on behalf of main assessee. In otherwords, all the TDS certificates, which were purported to have been issuedby the Northern Railway, were supplied by the main assessee to hisAdvocate. It was the main assessee, who had procured the documents fromthe concerned authorities and claimed the refund. In case, the main assesseehad claimed the refund on the basis of forged TDS certificates, then, theIncome Tax Authorities were competent and well within their jurisdiction toreject his claim of refund under the relevant provisions of The Income TaxAct. Thereafter, the aggrieved party had a right to file the statutory appeal inthis relevant connection. Be that as it may, therefore, in that eventuality, the CRM No.A959MA of 2014 along with 44 connected petitions6 respondent-accused, who was an Advocate, had just submitted the incometax return on behalf of main assessee, cannot possibly be and indeed couldnot be held liable for criminal prosecution for procuring the documents bymain assessee in order to attract the penal provisions of indicated offences,as contrary urged on behalf of complainant-ITO. Similarly, the mere factthat he had prepared the income tax return on behalf of assessee, ipso facto,is not a ground, muchless cogent, to hold respondent-accused guilty for thecommission of offences punishable u/ss 177 and 182 IPC in the absence ofmain assessee. CRM No.A959MA of 2014 along with 44 connected petitions6 respondent-accused, who was an Advocate, had just submitted the incometax return on behalf of main assessee, cannot possibly be and indeed couldnot be held liable for criminal prosecution for procuring the documents bymain assessee in order to attract the penal provisions of indicated offences,as contrary urged on behalf of complainant-ITO. Similarly, the mere factthat he had prepared the income tax return on behalf of assessee, ipso facto,is not a ground, muchless cogent, to hold respondent-accused guilty for thecommission of offences punishable u/ss 177 and 182 IPC in the absence ofmain assessee. 15,Not only that, there is yet another aspect of the matter, whichcan be viewed entirely from a different angle. The bare perusal of the recordwould reveal that the respondent-accused had submitted the income taxreturn on 24.11.1989 and the main assessee had obtained the TDScertificate, much prior thereto from the Railway authorities. The respondent-accused was summoned to face the trial, vide summoning order dated3.7.1999 and ultimately he was charge sheeted for having committed theoffences punishable u/ss 177 and 182 IPC. What cannot possibly bedisputed here is that the maximum sentence prescribed under the indicatedoffences is simple imprisonment for a term, which may extend to six monthseach or with fine, which may extend to Rs.1000/- each or with both,sequelly, section 468 Cr.PC postulates that no Court shall take cognizanceof such offences after the expiry of period of one year as contemplated u/s468 (1) (2) (b) of Cr.PC. The very object of section 468 Cr.PC in putting abar of limitation of proceedings was clearly to stop the parties from filingcases after a long time (delay) and to prevent the abuse of process of courtby filing vexatious and belated prosecutions long after the date of the CRM No.A959MA of 2014 along with 44 connected petitionsww offence. This object which the statute seeks to subserve is clearly inconsonance with the concept of fairness and speedy trial as enshrined inArticle 21 of the Constitution of India. Thus, it is imperative and utmostimportance that any prosecution instituted by the State or a privatecomplainant must abide by law in letter and spirit or to take the risk of theprosecution failing on the ground of limitation. To my mind, the mandatoryand statutory bar created by section 468 Cr.PC cannot and indeed should notbe avoided under any circumstances. In this manner, what to talk ofvicariously convicting the respondent accused in the absence of mainassessee, even the initiation of entire criminal proceedings against him arenon est in the eyes of law. 16.Therefore, otherwise also, taking cognizance of the pointedoffences against the respondent-accused was barred by limitation as well,Not only that, taking into consideration the non-maintainability of thecomplaint against the respondent-accused, inherent legal lacunae, missingof link evidence, contradictions, improbabilities, totality of the evidence onrecord and ratio of law on the point, the trial Court has correctly acquittedhim, by way of impugned judgment of acquittal, which, in substance, is as under:- “II. The aforesaid discussion make it clear that there is only arguable point as towhether an Advocate may be held liablefor submission of wrong/false income taxreturn showing name of non existing persons in order to derive pecuniary benefitin the shape of refund or it was filed with an intention to cause harm to publicServant. I would like to point out fact as per evidence led by complainant. [nitiallyreturn was submitted to dealing clerk who put up the same to the ITO and onperusal of return along with documents, ITO was/is competent either to accept orreject the claim. If ITO rejected the claim after due enquiry aboutassessee/claimant then he was required to issue notice to the assessee/claimant asto whether he submitted return or not but no such enquiry was conducted, CRM No.A959MA of 2014 along with 44 connected petitions8 I would like to point out fact as per evidence led by complainant. [nitiallyreturn was submitted to dealing clerk who put up the same to the ITO and onperusal of return along with documents, ITO was/is competent either to accept orreject the claim. If ITO rejected the claim after due enquiry aboutassessee/claimant then he was required to issue notice to the assessee/claimant asto whether he submitted return or not but no such enquiry was conducted, CRM No.A959MA of 2014 along with 44 connected petitions8 Complainant did not prove any enquiry relating to non existence of assessee orclaimant before this Court. It is however amply clear that ifclaim is to be acceptedby ITO then refund amount must be credited in the account of assessee. In thatway, there was no role of an advocate to claim bogus refund because if the refundamount is credited in account of assessee then if any wrong claim is submittedbefore public servant even then he may easily reject the claim as sought in thereturn. Further, [TO must have initiated proceedingsJudiciously as required underrules. He was bound to obtain power of attorney of an advocate along withverification or attestation about assessee by an advocate on the return but no suchprocedure was being followed or implemented while submission of return by anindividual assessee himselfor through his counsel or clerk. This income tax returnis in the name of assessee/claimant and it does not bear the signature of anadvocate. In case, an advocate filled these returns in his own handwriting ondictation or direction of assessee even then no criminal liability can be shiftedupon an advocate who will certainly not receive any refund, rather this amount ofrefund must be credited in the account of assessee/individual. In case, assesseecollected some vague document and attached with the return then it is duty of thepublic servant to scrutinize each and every fact in fair and impartial manner, sothat question of acceptance or rejection of refund an be determined judiciously.This return is neither supported with any verification report by an advocate norany affidavit or power of attorney and in that way if there was not found anyassessee then public servant may easily reject the refund by exercising his powerin a judicious manner. Here the accused Sudesh Sharma explained his position inreply and reason to issue letter by ITO because he instituted civil suit against ITOon 11.6.1990 in the court of Shri Inderjit Mehta, then ld. Sub Judge I[Si]Class,Kurukshetra and notice in this case was served upon Shri M.L.Jain, then ITO anddue to this reason Shri M.L.Jain, then ITO became annoyed and instituted thiscomplaint to avenge accused Sudesh Sharma. 12. More so, there is apparently missing link evidence which I would like tohighlight as under :- That complainantfailed to establish who submitted return before dealing clerk.[tis no where established as to whether clerk of an advocate, assessee/claimant orSudesh Sharma Advocate submitted orfurnished return before dealing clerk. That the complainant failed to examine dealing clerk who received returnwithout verification or attestation by an advocate. That there is nothing mentioned in the return about endorsement as to whetherthe contents mentioned in the return are true and correct to the best of myknowledge or an assessee nor it bears the signature ofan advocate. That this return is not supported with any power of attorney, so it may easilysaid it is not proved any authorization by any assessee in whose behalf CRM No.A959MA of 2014 along with 44 connected petitionsQ claim/refund was sought while submission ofreturn. That the complainant failed to examine dealing clerk who received returnwithout verification or attestation by an advocate. That there is nothing mentioned in the return about endorsement as to whetherthe contents mentioned in the return are true and correct to the best of myknowledge or an assessee nor it bears the signature ofan advocate. That this return is not supported with any power of attorney, so it may easilysaid it is not proved any authorization by any assessee in whose behalf CRM No.A959MA of 2014 along with 44 connected petitionsQ claim/refund was sought while submission ofreturn. That there is posted one Income Tax Officer and one Inspector who used todealt with more than 4000-5000 returns in a year, if it was so then before issuingletter to an advocate, [TO should have obtained power of attorney of an advocaterelating to alleged assessee/claimant and verification and attestation reportregarding contents mentioned in the return to be correct and genuine on behalf ofassessee. But no such verification or attestation had been sought on returnfurnished with the casefile. That in case of submission of report, [TO may frame or direct an advocate tofurnish PAN Card of assessee or any other identification of assessee so that claimofassessee can be decidedjudiciously. However, no such identification ofassesseehas been obtained as per record on file. Since, claim/refund was to be credited inthe account of assessee then it cannot be said that an advocate would collectfakeTDS certificate from employer in order to derive any pecuniary benefit from thecomplainant department. That if any employer/contractor/Railway Department may derive pecuniarybenefit on behalf offake assessee by way of opening their bank account then thebenefit must be received by the employer or contractor or department and in thatway it will not attribute any role of an advocate in deriving benefit from thecomplainant department. However, ITO neither enquired aboutcontractor/employer/department nor it may presume that it was an act of anadvocate to take undue benefit in the shape of money while furnishing wrongreturn because it isfor the authority ofIncome Tax Department either to accept onreject claim as sought in the return as per rule. Here in this case, claim/refund hasbeen rightly rejected by the competent authority after due enquiry aboutdocuments annexed with return. That complainant department neither issued any _ notice temployer/contractor/department nor produced any enquiry report. In case, SudeshSharma filled requisite performa etc. in his own hand writing even then it cannotbe said that he submitted returns in order to derive any benefit becauserefund/claim was to be credited in account of assessee. Until otherwise, it is dutyof an advocate to put forward claim before income tax authority on behalf ofassessee and if authority after due scrutiny found it not proper or wrong thenclaim may easily be rejected. So, it is not understandable as to what was need ofobtaining expert report in order to compare the writing mentioned in the returnbecause amount of refund was not be credited in the account of an advocate. So,he was not held liable for submission of wrong information on behalf of assesseebecause ifa person 1s not in existence even then refund/claim ifaccepted cannot becredited in his account. Here in this case, letter was duly replied by SudeshSharma but even then unnecessary evidence was being collected to shift undue CRM No.A959MA of 2014 along with 44 connected petitions10 burden upon an advocate who had no role to derive any benefit while submissionofreturn on behalfofassessee. That ITO verified about assessee while sending Inspector to visit personally andon receipt of report of Inspector regarding non existence of assessee, claim wasrejected belonging to assessee but it would not create any criminal liability forsubmission ofwrong income tax return by an advocate on behalfofassessee. ”’ CRM No.A959MA of 2014 along with 44 connected petitions10 burden upon an advocate who had no role to derive any benefit while submissionofreturn on behalfofassessee. That ITO verified about assessee while sending Inspector to visit personally andon receipt of report of Inspector regarding non existence of assessee, claim wasrejected belonging to assessee but it would not create any criminal liability forsubmission ofwrong income tax return by an advocate on behalfofassessee. ”’ 17.Meaning thereby, the trial Court has examined the matter in theright perspective and correctly acquitted the respondent-accused. Thelearned counsel for petitioners did not point out any material, much lesscogent, so as to warrant any interference in the impugned judgments ofacquittal. Such articulated impugned judgments of acquittal, containingvalid reasons, cannot possibly be interfered with in exercise of limitedjurisdiction under section 378(4)Cr.PC by this court, unless and until, thesame are illegal, perverse and without jurisdiction. Since no such patentillegality or legal infirmity has been pointed out by the learned counsel forpetitioners, so, the impugned judgments of acquittal deserve to be and arehereby maintained for the reasons mentioned here-in-above in the obtainingcircumstances of the case. 18.No other legal point, worth consideration, has either been urgedor pressed by the learned counsel for the petitioners. 19.In the light of aforesaid reasons, as there is no merit, therefore,the instant petitions for leave to appeal are hereby dismissed as such. (Mehinder Singh Sullar)Judge10.11.2014 AS Whether to be referred to reporter? Yes/No