M K Mirani Income Tax Officer - Appellant(S v. `M/S Ravindra Industiries & 3 - Opponent(S)`

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1122 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE Z.K.SAIYED =========================================================1[Whether Reporters of Local Papers may be allowed ]to see the judgment ?2To 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 law as to the interpretation of the 4constitution of India, 1950 or any order made thereunder ?5[Whether it is to be circulated to the civil judge ]? ========================================================= M K MIRANI INCOME TAX OFFICER - Appellant(s)Versus M/S RAVINDRA INDUSTIRIES & 3 - Opponent(s) ========================================================= Appearance : MRS MAUNA M BHATTfor Appellant(s) : 1,MR BB NAIK for Appellant(s) : 1,MR RC JANI for Opponent(s) : 1 - 3.MS JIRGA JHAVERI, APP for Opponent(s) : 4,========================================================= CORAM :HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 05/09/2012 ORAL JUDGMENT 1. By way of present appeal the appellant has challenged the judgment and order of acquittal dated 31.1.1997 passed by the 2. 3. learned Additional Chief Metropolitan Magistrate, Ahmedabad, in Criminal Case No.80 of 1986. The said case was registered against the respondents–original accused for the offences punishable under Sections 276-C and 277 of the Income-tax Act and under Section 181 of the Indian Penal Code. According to the prosecution case, the accused persons filed income-tax return on 25.4.1975 for the assessment year 1975-76, in which clear profit of Rs.24,247/- was shown instead of Rs.37,937/- and did not show difference of balance-sheet amount of Rs.1,11,872/- and thereby the accused persons tried to avoid tax, penalty and interest on the amount of Rs.1,25,562/- and committed offence punishable under Section 276-C of the Income-tax Act. Hence the complaint came to be lodged. Thereafter, investigation was carried out and statements of several witnesses were recorded.Duringthecourseof recorded.Duringthecourseof investigation,accusedpersonswere arrested and, ultimately, charge-sheet came to be filed against them in the Court of learned Metropolitan Magistrate Court. CR.A/1122/1997 4. Thereafter, charge came to be framed and explained to the accused persons, to which the accused persons pleaded not guilty and claimed to be tried. claimed to be tried. 5. In order to bring home the charges against the accused persons, prosecution has examined several witnesses and also produced documentary evidence. produced documentary evidence. 6. Thereafter, after filing closing pursis by the prosecution, further statements of the accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused persons have denied the case of the prosecution and submitted that a false case is filed against them. 7. At the conclusion of trial and after appreciating the oral as well as documentaryevidence,thelearned appreciating the oral as well as documentaryevidence,thelearned Magistrate vide impugned Judgment and order, acquitted the respondents – accused. 8. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 31.1.1997 passed by the learned Additional Chief Metropolitan Magistrate, Ahmedabad, in Criminal Case No.80 of 1986, dated 31.1.1997 passed by the learned Additional Chief Metropolitan Magistrate, Ahmedabad, in Criminal Case No.80 of 1986, the appellant has preferred the present appeal before this Court. 9. Heard Ms.Mauna Bhatt, learned counsel for the appellant. Notice is served to the other side. Mr.R.C.Jani, learned counsel has appeared for respondent Nos.1 to 3 and Magistrate vide impugned Judgment and order, acquitted the respondents – accused. 8. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 31.1.1997 passed by the learned Additional Chief Metropolitan Magistrate, Ahmedabad, in Criminal Case No.80 of 1986, dated 31.1.1997 passed by the learned Additional Chief Metropolitan Magistrate, Ahmedabad, in Criminal Case No.80 of 1986, the appellant has preferred the present appeal before this Court. 9. Heard Ms.Mauna Bhatt, learned counsel for the appellant. Notice is served to the other side. Mr.R.C.Jani, learned counsel has appeared for respondent Nos.1 to 3 and Ms.Jirga Jhaveri, learned APP has appeared for respondent No.4 – State. 10. Ms.Mauna Bhatt, learned counsel for the appellant has contended that the trial Court has erred in appreciating that, the prosecution was launched under Section 276-C read with Section 277 of the Income Tax Act. Assuming that Section 276-C was not in force in April, 1975, but Section 277 was there for the year under consideration. prosecution was launched under Section 276-C read with Section 277 of the Income Tax Act. Assuming that Section 276-C was not in force in April, 1975, but Section 277 was there for the year under consideration. Language of Section 277 is clear and unambiguous. She has contended that the trial Court has erred in not appreciating the evidence available on record, more unambiguous. She has contended that the trial Court has erred in not appreciating the evidence available on record, more particularly, Ex.34 and 35, which goes to show that, the false accounts are verified by the respondent No.2. Lastly, she has read observations of the learned Magistrate and contended that the observations made by the learned Magistrate are not proper in the eye of law and therefore, judgment and CR.A/1122/1997 order of the learned Judge is required to be set aside. 11. Mr.R.C.Jani, learned counsel appearing for the respondent Nos.1 to 3 has contended that the offence occurred prior to 25.1.1975. Section 276-C of the Income Tax Act was amended on 1.10.1975, therefore no retrospective effect is given. Hence no offence is made out under Section 276-C of the Income Tax Act. He has contended that the learned Magistrate has rightly considered that the respondents have not committed any wrong, as alleged by the Income Tax Department. 12. I have perused the record and considered the submissions made by the parties. It is true that prosecution was launched under Section 276-C read with Section 277 of the Income tax Act. Though Section 276-C was not in force in the year April 1975, Section 277 was there for the year under consideration. It is, therefore, apparent that, the learned Magistrate has not considered the said aspect of the matter while deciding the case. 13. In the result, this Appeal is partly kks allowed. The impugned judgment and order dated 31.1.1997 passed by the learned Additional Chief Metropolitan Magistrate, Ahmedabad, in Criminal Case No.80 of 1986, 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 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.)