Learned Advocate Mrs. Bhatt Relied On The Decision In The Case Reported In _1993 Income Tax Reporter (199) 428_ In The Case Of _Bomin Pvt. Ltd. And Others v. M/S Gujarat Ginning And Manufacturing Co.ltd

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 283 of 1998 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 ? ====================================== C C MASTER - Appellant(s)Versus M/S GUJARAT GINNING AND MANUFACTURING CO.LTD. & 4 - Opponent(s) ====================================== Appearance :MRS MAUNA M BHATT for Appellant(s) : 1,UNSERVED-EXPIRED (N) for Opponent(s) : 1 - 2, 4,MR BHAVESH D HAJARE for Opponent(s) : 3,MRS HANSA PUNANI ADDITIONAL PUBLIC PROSECUTOR for Opponent(s) : 5, ====================================== CORAM :HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 31/07/2012 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 31.7.1997 passed by the learned Additional Chief Metropolitan Magistrate, Ahmedabad, in Criminal Case No.212 of 1987, whereby the accused has 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 Nos.1 Company namely Gujarat Ginning and Manufacturing Company was assessor under the Income-Tax Act, 1961. The accused had to file Return with regard to the income in the year 1981-82 and they had to file declaration about the same. The accused No.2 being Chairman and Managing Director and accused Nos.3 to 5 being Directors of the Company were working under their control. The Return for the Assessment Year 1982-83 was submitted on 21.1.1982. The accused No.1 Company furnished its return of income for the assessment year 1981-82 declaring therein its income at Rs.4,88,374/-. Therefore, the accused had to pay Rs.3,41,256/- towards advance tax and instead of the same, the accused had paid only Rs.3,15,000/- tax amount. In this manner, the accused committed offence punishable under Section 276(C)(1), 276(C) (2) and 277 read with Section 278-B of the Income Tax Act. Thereafter, plea was recorded under Section 355 of the Code of Criminal Procedure, wherein the accused denied about the commission of the offence and necessary statements of witnesses were recorded. 2.2To prove the case against the present accused, the prosecution has examined, in all 4 witnesses and also produced several documentary evidence. From the defence side, one witness was examined. 3.At the end of trial, after hearing arguments on behalf of prosecution and the defence, the learned Metropolitan Magistrate acquitted the respondents of all the charges leveled against them by judgment and order dated 31.7.1997. 4.Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Magistrate, the appellant has preferred the present appeal. 2.2To prove the case against the present accused, the prosecution has examined, in all 4 witnesses and also produced several documentary evidence. From the defence side, one witness was examined. 3.At the end of trial, after hearing arguments on behalf of prosecution and the defence, the learned Metropolitan Magistrate acquitted the respondents of all the charges leveled against them by judgment and order dated 31.7.1997. 4.Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Magistrate, the appellant has preferred the present appeal. 5.Learned advocate Mrs. Mauna Bhatt appearing for the appellant submitted that the offence under Section 276C(2) was proved and the ingredients of the offence 276C(1) and 277 read with Section 278B were proved by the complainant. She further submitted that the trial Court framed the charges for the offences as alleged against accused, and once the charges were framed, the said charges were not challenged by the accused. She further submitted that even after framing the charge and recording the evidence, the trial Court can modify the charge under Section 216 of the Act. In the present case, the accused were given ample opportunity to defence themselves and therefore, as per her submission, the trial Court ought to have convicted the accused for the alleged charges framed against them. 6.Learned advocate Mrs. Bhatt relied on the decision in the case reported in 1993 Income Tax Reporter (199) 428 in the case of Bomin Pvt. Ltd. and Others Vs. Union of India, wherein this Court has quashed and set aside the order passed by the learned Chief Metropolitan Magistrate. She further submitted that as per the order passed by the learned Additional Chief Magistrate, he has not considered oral and documentary evidence, which is produced before in support of the case of the complainant. She has further contended that from the order itself shows that learned trial Judge has not properly appreciated the evidence on record and while passing the order of acquittal, learned trial Judge has not observed any single ingredients of the provision relating to the Income Tax Act for awarding the sentence of acquittal. As per her submission, the learned trial Judge has not assigned cogent reason while passing the order of acquittal. In view of the above, she stated that the this matter is required to be sent back to the concerned Court for reconsider of matter. 7.Learned advocate Mr. Manish Patel for Mr. Hajare read the evidence and judgment and order passed by the learned trial Court and argued that said case was filed in th year 1987 and now, the accused Nos.1,3 and 4 are no more. He also submitted that after such a long period, learned advocate for the appellant praying for reminding back the matter is not just and proper. Therefore, he submitted that the learned trial Judge has rightly appreciated the evidence and passed the order of acquittal which is just and proper. 8.I have perused the record and considered the submissions made by the parties. From the entire record of the case, it appears that the accused are defaulter in paying the tax to the Income Tax Department and though direction issued by the learned Appellate Income Tax Tribunal, the accused filed Return by wrongly stating the income which was earned from the business and even they have stated less amount than actual, which was legally to be paid by the accused. Even though the facts on record, the learned Magistrate has acquitted the accused without appreciating the fact that the accused filed wrong Return by stating less amount and also they suppressed the real income on which the tax was to be assessed. The accused had shown the income which was accrued from the rent, under the head of earning from business. 9.In the result, this Appeal is partly allowed. The impugned judgment and order dated 31.7.1997 passed by the learned Chief 9.In the result, this Appeal is partly allowed. The impugned judgment and order dated 31.7.1997 passed by the learned Chief Metropolitan Magistrate, Ahmedabad, in Criminal Case No.212 of 1987 acquitting the respondents is hereby quashed and set aside. The case is remanded to the trial Court with a direction to decide the same on merits and in accordance with law. The learned Chief Metropolitan Magistrate, Ahmedabad is directed to notify the said Criminal Case before the concerned court with a direction to decide the said case within a period of six months from the date of receipt of the writ of this order. R & P, if received, be sent back to the trial Court, forthwith. (Z.K. SAIYED, J.) ynvyas