Inspecting Assistant Commissioner Of Income Tax(Asstt.) Patiala v. Bhagwan Dass

CRA-S-280-SBA of 2006 1 1747 IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH CRA-S-280-SBA of 2006Date of decision: September 29, 2017 Inspecting Assistant Commissioner of Income Tax(Asstt.) Patiala Versus Bhagwan Dass ...... Appellan ....Respondent CORAM: HON'BLE MR. JUSTICE A.B. CHAUDHARI Present:None. A.B. CHAUDHARI,J(Oral) 0000 The present appeal was filed by the Inspecting AssistantCommissioner of Income Tax-appellant against the judgment dated02.02.1999 passed by the additional Sessions Judge, Patiala, by whichthe lower Appellate Court accepted the appeal preferred by therespondent and acquitted him of the charge under Section 276-CC ofthe Income Tax Act, 1995 (for short ' Income Tax Act’). None appeared on behalf of the appellant. I have perused the entire record including the judgmentand order recorded by the learned trial Court. Respondent wasprosecuted by the appellant-Department for not filing returns in propertime and rather for violation of the provisions of Income Tax Act. It was the case of the respondent-accused that as a matter of fact, he had been penalized by the Income Tax Department byrecovery of interest on the tax due and accordingly, he had paid CRA-S-280-SBA of 2006| L21,178/- plus:L3,816/- plus=4,964/- as interest on the income tax andthus, it was all recovered. It was the case of the respondent-accusedthat there was no willful default proved by the Department and assuch, he could not be convicted. He was however, convicted by thetrial Court and sentenced to undergo Rigorous Imprisonment for 3years so also the fine imposed. The lower Appellate Court acquittedhim. Hence, this appeal. | have perused the reasons recorded by the learned lowerAppellate Court. The learned lower Appellate Court found that the trialCourt had income put the burden of proof on the accused and that thetrial Court forgot the fact thatMens vedWassine qua noneven for theoffences under the Income Tax Act. The trial Court ought to havedrawn adverse inference against Income Tax Department rather thanthe respondent. The learned lower Appellate Court has recorded thereasons in Para 12 of its judgment. Instead of repeating the same, Iquote the same as under:- “\.....J0r the purpose of launching the proceedings for therecovery ofpenalty under section 271 (1) of the Act prior tothe year 1986, the Income-tax Officer was required tosatisfy that any person had without reasonable causefailed to furnish the return of total income but in the caseof launching the prosecution under section 276CC of theAct, it is necessary for the Income-tax Department toallege and prove that there was willful default on the partof the defaulter in the matter of filing the Income-Taxreturn. Thus, it was for the complainant to establish thatfault of the accused/appellant was willful in the matter of not filing the return within the prescribed time limit asprovided under section 159(1) of the Act. Interestinglycomplainant D.S. Sidhu, who was authorised to launch theprosecution against the accused by the commissioner, didnot appear as a witness without any just and reasonableexcuse. Ihe authorisation order passed by Sh. S.C,Prashar, Income-Tax commissioner, Patiala in this case 1sdated 25.05.1985 (Ex.PD). The name of Joginder SinghInspector who appeared as PWI does not find mentionanywhere in the complaint. In his cross-examination hecategorically admitted that there was no_ writteauthorisation by the Commissioner of by A.A.C. Sh. D.S.Sidhu. He further stated that he has no_ personaknowledge about the filing of the present return not it wasfiled in his presence. He further stated that he was notposted in the same office but he had been auditing thefilesofSh. B.P. Sharma, [.T.O. when he used to visit Sangrur inorder to audit. Joginder Singh no where tried to explainthat fault of Bhagwan Dass in not filing the Income-taxreturn was willful.ad Upon perusal of the above reasons, I am inclined to agreewith the above reasons recorded by the lower Appellate Court that theburden of proof was on Income Tax Department who was theprosecuting agency and it could not be thrown on respondent-accused.Similarly, the prosecution did not examine any concerned persons toprove the authorisation as well as any record to show that return wouldnot infact have been filed between stipulated time. That apart, theelement ofMens red1S|Sine qua nonfor conviction of a person. Forthat purpose, the lower Appellate Court relied upon several decisions CRA-S-280-SBA of 2006 of the High Court and Supreme Court which have been quoted so bythe learned lower Appellate Court right after Para 9 in its judgment. In my view, therefore, the learned lower Appellate Courtwas right in applying the first principle of criminal law regardingburden of proof resting on the Income Jax Department who wasrequested to prove its own case. The findings of facts recorded bylearned lower Appellate Court are based on evidence. No second view1S possible. Dismissed. September 29, 2017 mahavir (A.B. CHAUDHARI)JUDGE Whether speaking/ reasoned;Yes/No Whether Reportable:Yes/No