9911796707
TMI Blog2002 (11) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... r that all partners would not be held responsible for filing false and incorrect return for evasion of tax but only that partner will be responsible who is in charge of and responsible for the work of the firm. In the present case, return of the firm and the verification were signed by applicant No. 2, Mohanlal. There is no allegation that all partners were in charge of and responsible for the working of the firm. Therefore, prosecution of all partners was also illegal in this regard. - - - - - Dated:- 13-11-2002 - Judge(s) : S. L. KOCHAR. JUDGMENT S.K. KOCHAR J.-This revision petition, has been filed by the applicants against the judgment dated April 6, 1994, passed in Criminal Appeal No. 62 of 1994 by 7th Additional Sessiosn Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Income-tax Officer, Bhalchandra Kulkami (PW-1), and hearing both the parties, convicted the applicants and the same has been affirmed by the appellate court. Therefore, this revision before this court. Learned counsel for the applicants, Mr. Satish Bagadia, senior advocate, with Mr. Chhabda, submitted that the conviction is based on solitary testimony of the Income-tax Officer, Mr. Kulkarni (PW-1), and the materials documents, i.e., Udarat note book, loose papers, etc., on the basis of which the Income-tax Officer assessed the income more than the declared income in the return by the applicants, were not filed. Therefore, the statement of the witness could not be relied upon. He further submitted that the assessment order is based on gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come-tax Officer to hold that the applicants had filed a false return and, therefore, evaded tax. Both the documents are falling within the purview of documentary evidence and the same should have been filed and proved as per the provision under sections 61 and 62 of the Evidence Act (Chapter V) regarding proof and contents of documents of primary evidence. The foundation of the prosecution case is based on these documents and the same were not filed. Even no reasons have been assigned for not doing so. Therefore, the bald statement of the Income-tax Officer could not have been relied on for holding the applicants guilty for filing of false return and evasion of tax. The courts below have failed to consider three cardinal principles of cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d capital is also based on estimate and an estimate is based on all these loose papers and chits, note book, etc. Mr. Bhalchandra Kulkami (PW-1) in para. 26 has specifically admitted that for addition of unaccounted income he did not receive any document and the amount of sale in the account book, is based on estimate/opinion. This court in the case of Union of India v. Govindji Laxmidas and Co. [1992] 20 ITC 56, has held as under: "A bare reading of section 276C would indicate that the applicants are required to prove that the non-applicants wilfully attempted to evade any tax. Similarly for proving offence under section 277 of the Act, the applicants will be required to prove that the accounts of statements submitted by the non-applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warsa and Sons [1972] 83 ITR 369, the Supreme Court ruled that a penalty cannot be levied solely on the basis of reasons given in the order of assessment. It is because of this law that the Income-tax Appellate Tribunal did not place any reliance on the finding recorded against the non-applicant in assessment proceedings. If the findings of assessment proceedings do not operate as res judicata how can they be made the sole basis of conviction in a criminal case permitting such a course to be an accused person. Such an argument cannot be made in the context of the basic principle of our Constitution, particularly, under articles 14 and 21. This court, therefore, has no hesitation in holding that the view taken by the Department in assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax Officer, Mr. Kulkarni (PW-1), in paras. 19 and 28 he has deposed that in exhibit P 18, the facts were not written on the basis of which offence was made out. It was also not written which partner was responsible for the offence, only the names of all partners are mentioned. It was not mentioned in exhibit P18 which record is sent to the Commissioner and under the signature of the Commissioner, no seal was affixed. Law is very clear that all partners would not be held responsible for filing false and incorrect return for evasion of tax but only that partner will be responsible who is in charge of and responsible for the work of the firm. In the present case, return of the firm and the verification were signed by applicant No. 2, Moha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
