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TMI Blog1999 (2) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... m of the charges levelled against him. The Department moved the High Court (see [19921 198 ITR 93 (P & H)) against the aforesaid acquittal passed by the learned sessions judge and the High Court by the impugned judgment, allowed the appeal and set aside the judgment of acquittal passed by the learned Sessions Judge and affirmed the conviction and sentence of the appellant passed by the learned Chief Judicial Magistrate, The learned Sessions Judge, after analysing the charges and evidence led by the prosecution in support of the said charges, came to the conclusion that the gravamen of indictment against the accused lay in the fact that he had filed an incorrect return of income from his transportation business and intentionally withheld books of account seized during a search made under section 132 of the Income tax Act and had made a wrong verification of the statements filed in sup port of the return. But, according to the learned Sessions Judge, the charges were not only vague but also the prosecution evidence was totally insufficient to infer the criminal intent of the accused-assessee and, there was nothing on record to pinpoint the identity, veracity or falsity of entries in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have taken the other view. In the case in hand, not only has the High Court not considered the reasons given by the Sessions Judge in acquitting the accused-appellant but also the order of acquittal has been reversed merely by reference to the presumption arising out of section 132(4A) of the Income-tax Act and in this view of the matter the conclusion is inescapable that the High Court committed a serious error in interfering with the order of acquittal passed by the Sessions Judge. Mr. Salve further contended that the penalty proceeding in question having ended in favour of the assessee-accused on a conclusion that the additions made in the assessment was purely on the basis of a difference of opinion as to the estimate made by the assessee and the estimate made by the Department and, therefore, there has not been a case of concealment of income or furnishing of inaccurate particulars of income, the High Court committed serious error in interfering with the order of acquittal. It is in this connection, Mr. Salve brought to the notice of the court the legislative mandate engrafted in section 279(1A) of the Income-tax Act. He also pointed out to us the earlier order of this court d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based and must reach the conclusion that the view taken by the acquitting judge was clearly unreasonable. It has also been held by this court that if the evaluation of the evidence made by the courts below while recording an order of acquittal does not suffer from any illegality or manifest error and the grounds on which the said order of acquittal is based are not unreasonable, then the High Court should not disturb the said order of acquittal. Bearing in mind the aforesaid principles and on examining the judgment of the learned Sessions Judge and the grounds on which the said learned Sessions Judge recorded an order of acquittal, as reflected in paragraphs 9, 10 and 11 of the appellate judgment, and the impugned judgment of the High Court interfering with the said judgment of the Sessions Judge, we have no hesitation to come to the conclusion that the High Court has not considered the reasons and grounds advanced by the learned Sessions Judge while recording an order of acquittal and by merely relying upon the presumption arising out of section 132(4A) of the Income-tax Act, reversed the order of acquittal without reversing the findings arrived at by the Sessions Judge on the evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a search, it may be presumed--- (i) that such books of account other documents, money, bullion, jewellery or other valuable article or thing belong or belongs to such person ; (ii) that the contents of such books of account and other documents are true ; and (iii) that the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of any particular person, are in that person's handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested." We fail to appreciate how applying the presumption under section 132(4A) the ingredients of the offence under sections 276C and 277 can be held to have been established as has been held by the High Court. Wilful attempt to evade any tax, penalty or interest chargeable or imposable under the Act under section 276C is a positive act on the part of the accused which is required to be proved to bring home the charge against the accused. Similarly, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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