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TMI Blog1963 (8) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... et, with godowns at Kandappa Chetty Street. The Special Deputy Commercial Tax Officer (P.W. 1) inspected the shop and godown of the firm on 28th June, 1958, in the presence of Kandasami Nadar (A-3) when he took into custody a pocket note book exhibit P-1 containing entries of business transactions from Dharmalingam, an employee of the firm. Subsequently, on a report from P.W. 1, the Joint Commercial Tax Officer, P.W. 2, issued summons and A-3 produced regular accounts which on a comparison with exhibit P-1, were found to contain several omissions. P.W. 2 then served a notice on A-3 who filed his objections. These objections were overruled and P.W. 2 passed an assessment order as per exhibit P-7 and the same was served on A-3. The assessee f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returns under section 36 of the Bombay Sales Tax Act, 1953. The evidence that was produced to prove the charge was a statement admitting the offence made by the accused to the Sales Tax Officer who was authorised by the Collector to investigate the offence. The Bombay High Court held that the Sales Tax Officer would be a police officer within the meaning of section 25 of the Indian Evidence Act and therefore the statement made to that officer, which amounted to a confession, was not admissible in evidence. The learned Presidency Magistrate distinguished this case by stating that officers under the Madras General Sales Tax Act are not police officers within the meaning of section 25 of the Evidence Act. He further relied on Public Prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tries in exhibit P-1 do not relate to the sales held by the firm and that they are not account books relating to firm transactions. It might have been kept in the personal custody of D.W. 1; but that does not make it the less an account book relating to firm transactions when admittedly D.W. 1 was a trusted employee of the firm and apart from entries relating to firm transactions, no other entries could have been made therein. I have, therefore, no doubt in my mind that a charge under section 45(2)(a) has been satisfactorily made out. The further contention is that in the circumstances of this case and having regard to the nature of the charge, the absentee partners, A-1, A-4 and A-5, who are not residents of Madras cannot be held guilty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rately made the return with the knowledge he was excluding a taxable item; and the word "wilful" has been designedly used to express the mental element necessary to constitute the offence and excludes bona fides in respect of the return. In the present case, the return which has been found to be false was submitted on behalf of the firm but it was signed by A-3 alone. Since the section contemplates wilfulness and therefore mens rea, there can be no doubt that A-3 who submitted the false return is liable. But could petitioners 1, 4 and 5 who personally had nothing to do with the submission of the return be also held liable is the question. The principle as stated in Halsbury (vide Vol. 10, Simonds 3rd Edition, page 275, para. 511) is when a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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