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TMI Blog2015 (1) TMI 975X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned authorities and claimed the refund. In case, the main assessee had claimed the refund on the basis of forged TDS certificates, then, the Income Tax Authorities were competent and well within their jurisdiction to reject his claim of refund under the relevant provisions of The Income Tax Act. Thereafter, the aggrieved party had a right to file the statutory appeal in this relevant connection. Be that as it may, therefore, in that eventuality, the respondent-accused, who was an Advocate, had just submitted the income tax return on behalf of main assessee, cannot possibly be and indeed could not be held liable for criminal prosecution for procuring the documents by main assessee in order to attract the penal provisions of indicated offences, as contrary urged on behalf of complainant-ITO Meaning thereby, the trial Court has examined the matter in the right perspective and correctly acquitted the respondent-accused. The learned counsel for petitioners did not point out any material, much less cogent, so as to warrant any interference in the impugned judgments of acquittal. Such articulated impugned judgments of acquittal, containing valid reasons, cannot possibly be interfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imed the refund of ₹ 3395/- on the basis of wrong TDS certificates submitted in his income tax return, through respondent-accused Sudesh Kumar, Advocate. In the background of these allegations, the complainant ITO had instituted different complaints, not against the main assessee, but against Sudesh Sharma, Advocate in the manner depicted here-in-above. Similar complaints were also filed by complainant-ITO against the respondent-accused with respect to main assessees in other connected matters. 4. After completion of all the codal formalities, ultimately the respondent-accused was ordered to be summoned, by virtue of summoning order dated 3.7.1999 by the trial Court. Consequently, he was charge sheeted for commission of offences punishable u/ss 177 and 182 IPC. The contents of charge sheets were read over and explained to the respondent, to which, he pleaded not guilty and claimed trial. Thereafter, the case was slated for evidence of the complainant by the trial court. 5. Having closed the evidence of complainant, the statement of the respondent-accused was recorded as contemplated under Section 313 Cr.P.C. The entire incriminating evidence was put to enable him to exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le or otherwise disturb the trial court's acquittal if it has very substantial and compelling reasons for doing so. A number of instances arise in which the appellate court would have very substantial and compelling reasons to discard the trial court's decision. Very substantial and compelling reasons exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong; (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in grave miscarriage of justice ; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the Ballistic expert, etc. (vii) This list is intended to be illustrative, not exhaustive. 2. The Appellate Court must always give proper weight and consideration to the findings of the trial court. 3. If two reasonable views can be reached - one that leads to acquittal, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for procuring the documents by main assessee in order to attract the penal provisions of indicated offences, as contrary urged on behalf of complainant-ITO. Similarly, the mere fact that 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 the commission of offences punishable u/ss 177 and 182 IPC in the absence of main assessee. 15. Not only that, there is yet another aspect of the matter, which can be viewed entirely from a different angle. The bare perusal of the record would reveal that the respondent-accused had submitted the income tax return on 24.11.1989 and the main assessee had obtained the TDS certificate, much prior thereto from the Railway authorities. The respondent-accused was summoned to face the trial, vide summoning order dated 3.7.1999 and ultimately he was charge sheeted for having committed the offences punishable u/ss 177 and 182 IPC. What cannot possibly be disputed here is that the maximum sentence prescribed under the indicated offences is simple imprisonment for a term, which may extend to six months each or with fine, which may extend to ₹ 1000/- each or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /claimant then he was required to issue notice to the assessee/claimant as to whether he submitted return or not but no such enquiry was conducted. Complainant did not prove any enquiry relating to non existence of assessee or claimant before this Court. It is however amply clear that if claim is to be accepted by ITO then refund amount must be credited in the account of assessee. In that way, there was no role of an advocate to claim bogus refund because if the refund amount is credited in account of assessee then if any wrong claim is submitted before public servant even then he may easily reject the claim as sought in the return. Further, ITO must have initiated proceedings judiciously as required under rules. He was bound to obtain power of attorney of an advocate along with verification or attestation about assessee by an advocate on the return but no such procedure was being followed or implemented while submission of return by an individual assessee himself or through his counsel or clerk. This income tax return is in the name of assessee/claimant and it does not bear the signature of an advocate. In case, an advocate filled these returns in his own handwriting on dictati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g contents mentioned in the return to be correct and genuine on behalf of assessee. But no such verification or attestation had been sought on return furnished with the case file. That in case of submission of report, ITO may frame or direct an advocate to furnish PAN Card of assessee or any other identification of assessee so that claim of assessee can be decided judiciously. However, no such identification of assessee has been obtained as per record on file. Since, claim/refund was to be credited in the account of assessee then it cannot be said that an advocate would collect fake TDS certificate from employer in order to derive any pecuniary benefit from the complainant department. That if any employer/contractor/Railway Department may derive pecuniary benefit on behalf of fake assessee by way of opening their bank account then the benefit must be received by the employer or contractor or department and in that way it will not attribute any role of an advocate in deriving benefit from the complainant department. However, ITO neither enquired about contractor/employer/department nor it may presume that it was an act of an advocate to take undue benefit in the shape of money ..... X X X X Extracts X X X X X X X X Extracts X X X X
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