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TMI Blog2000 (2) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... as, on November 22, 1982, from one V. Seshamma. The revision petitioner had stated that the said house was purchased for Rs. 2,40,000 by selling a part of her jewels and the jewels of her mother, Neelaveni, and grand-mother, Rajamma. The revision petitioner could not disclose the details of such jewels and the sale thereof. On the same day, i.e., on February 17, 1983, the office premises of Hariharan and Co., chartered accountants, who were attending to the income-tax matters of Kumari Jayapratha, was also searched under section 132 of the Income-tax Act and, inter alia, a receipt, dated August 31, 1982, signed by Smt. V. Seshamma, acknowledging the receipt of advance amount towards a sale of the house bearing door No. 20, First Cross Street, Lake Area, Nungambakkam, Madras, to the revision petitioner and her mother, Smt. P. Neelaveni, for a sale consideration of Rs. 5,70,000 was seized. The house of V. Dhinakar Reddy, the husband of V. Seshamma, was also searched on February 23, 1983, and the statement of Smt. V. Seshamma, was recorded under section 132(4) of the Income-tax Act, wherein she had stated to have sold the abovesaid house to the revision petitioner for a sum of Rs. 2,4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt, to undergo rigorous imprisonment for four months for the offence under section 420 read with section 511, Indian Penal Code ; to undergo rigorous imprisonment for three months and also to pay a fine of Rs. 3,000, in default, to undergo rigorous imprisonment for four months for the offence under section 193, Indian Penal Code, read with section 136 of the Income-tax Act, 1961 ; to undergo rigorous imprisonment for six months and also to pay a fine of Rs. 500, in default, to undergo rigorous imprisonment for six weeks for the offence under section 276C(1) of the Income-tax Act and to undergo rigorous imprisonment for six months and also to pay a fine of Rs. 500, in default, to undergo rigorous imprisonment for six weeks, for the offence under section 277 of the Income-tax Act, 1961 (two counts), for each count, and the sentences of imprisonment were ordered to run concurrently. Aggrieved by the judgment of the trial court in E. O. C. C. No. 136 of 1984, dated November 6, 1989, the accused, as appellant, filed C. A No. 248 of 1989, on the file of the Principal Sessions judge, City Civil Court, Madras. After considering the material evidence available on record and after hearing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 had given the stamped receipt, stating that the property belonging to her, situate at No. 20, First Cross Street, Lake Area, Nungambakkam, Madras, was agreed to be sold for a sum of Rs. 5,70,000 and an advance was also received in D.D.No. OL-019092 from the revision petitioner and her mother, Smt. Neelaveni. P.W.3 gave a statement, subsequent to the seizure of exhibit P-18, to P.W.1, as seen in exhibit P-12, dated March 30, 1983, and also sent a letter dated March 30, 1983, as seen in exhibit P-9, to the Department of Income-tax. P.W.4 Dhinakar Reddy gave a statement as seen in exhibit P-8, dated March 5, 1983, to P.w.1 and also attested the statement of P.W.3, exhibit P-2, as seen in exhibit P-13. In all the statements referred to above, and also in the attestation made by P.W.4, it was admitted by P.Ws.3 and 4 that the property referred to above was sold for a sum of Rs. 5,70,000 by P.W.3 to the revision petitioner, but the sale consideration was mentioned in the original of exhibit P-41, the sale deed as Rs. 2,40,000, at the request of the revision petitioner. The documents recovered in the search made in the house of P.W.3 and 4 and the documents produced by the abovesaid wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D-1 would disclose that the total income of the revision petitioner was determined under a protective basis at Rs. 6,75,000 without prejudice to the stand to be taken by Kumari Jayapratha, with regard to the demised property under consideration. A perusal of exhibit D-1 would disclose that the agreement made in connection with the income of the revision petitioner was only a protective basis assessment and not actual assessment. Exhibit D-2 is the assessment order of Kumari Jayapratha for the assessment year 1983-84, on November 17, 1986. A perusal of exhibit D-2 would disclose that the income-tax authority had come to the conclusion in the said assessment order that Kumari Jayapratha had a total expenditure of Rs. 6,75,000 from out of her income towards purchase of the demised property, including the sale consideration of Rs. 5,70,000, apart from the registration and stamp paper expenditure. It is also mentioned in the said assessment order that a protective assessment was made in the name of the revision petitioner herein for the assessment year 1983-84, inclusive of the sum of Rs. 6,75,000 as her income, without prejudice to the stand to be taken in the case of Kumari Jayapratha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent contends contra, stating that the verified false statement filed under section 230A(1) of the Act will constitute an offence punishable under sections 276C(1) and 277 of the Act and that, therefore, the submission made on the side of the revision petitioner should not be accepted, As already pointed out, the assessment made against the revision petitioner for the assessment year 1983-84 was a protective assessment and not without prejudice to the stand to be taken in the case of Kumari Jayapratha as the real owner of the property. The very same stand had been taken by the Department in the assessment of Kumari Jayapratha for the assessment year 1983-84 also. As already stated supra, Kumari Jayapratha cannot be the real owner of the demised property and the revision petitioner should alone be the real owner of the property. It is also the settled legal position that there can be a protective assessment, but penalties can be levied only after assessment orders are passed and not before assessment order, that is, there can be no levy of protective penalty. The prosecution has been launched against the revision petitioner while protective assessment was made by the Income-tax D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting from the revision petitioner while the balance investment of Rs. 5,19,000 was from Kumari Jayapratha in connection with the said transaction. The records in connection with the abovesaid direction were produced before the court for verification and return and a copy of the said proceeding was also submitted to the court by learned counsel appearing for the respondent-Department. Learned counsel appearing for the revision petitioner accepts the submission made by learned counsel for the respondent-Department as a subsequent development and is not disputing the said position. Normally, courts will not act on documents, which are not filed before the court. But, in this case, both sides concede about the development referred to above in the assessment for the assessment year 1983-84, in connection with the assessment of the revision petitioner as well as her sister, Kumari Jayapratha, and both sides are not averse to considering the abovesaid development. This court also feels that remanding the matter back to the trial court for giving opportunity to both sides to produce documents with regard to the subsequent development will only lead to further harassment of the parties an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tailed prosecuting an assessee even before settling the assessment of such assessee finally, it will lead to untold miseries and hardships to the assessee in the event of the assessee being found not liable to answer the claim made by the Income-tax Department. In ITO v. Gadamsetty Nagamaiah Chetty [1996] 219 ITR 263, the High Court of Andhra Pradesh has held as follows : "The punishment under sub-sections (i) and (ii) of section 277 of the Income-tax Act, 1961, arises only if there is any evasion of tax, otherwise the question of imposing punishment does not arise." As already pointed out, the revision petitioner was assessed under a protective basis and not finally for the assessment year 1983-84, without prejudice to the stand to be taken by Kumari Jayapratha as the real owner of the demised property under consideration at the time of initiating action by filing this complaint. In the subsequent development, Kumari Jayapratha was taxed for a sum of Rs. 5,19,000 out of the sale consideration referred to above. While the taxable income of the revision petitioner was accepted by the Income-tax Department at Rs. 1,56,000 for the assessment year 1983-84, payment of income-tax f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay tax is also restricted to that extent. It is also held that an order of assessment is also a valuable security under section 420, Indian Penal Code. If the abovesaid facts, coupled with the decisions referred to above, are taken into consideration, it is clear that the revision petitioner has committed an offence punishable under section 420 read with section 511 of the Indian Penal Code. A perusal of section 193, Indian Penal Code, would disclose that "whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine". It is also evident from the abovesaid section that "whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine". A perusal of section 136 of the Act would also disclose-that "any proceeding under this Act before an income-tax authority shall be deemed to be a judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner cannot be sustained. The last and final submission made in this case by learned counsel for the revision petitioner, relying on K. T. M. S. Mohammed v. Union of India [1992] 197 ITR 196 (SC) is that the application under section 230A(1) of the Act was filed before the Income-tax Officer, Special Survey Circle, Madras 6, but the prosecution was launched by the Income-tax Officer, Special Investigation Circle-III, Madras-34, and, therefore, the complaint filed by the complainant against the revision petitioner is not sustainable. A perusal of the proceedings of the Commissioner of Income-tax (Investigation), Madras-34, would disclose that the abovesaid Commissioner of Income-tax, after considering, the material evidence placed before him, has come to the conclusion that the revision petitioner should be prosecuted for the offences under sections 276C(1) and 277 of the Income-tax Act, as seen in exhibit P-37 and directed the complainant herein to file the complaint before the competent court. Under the said direction of the Commissioner of Income-tax (Investigation), Madras-34, the complainant has lodged the complaint. Therefore, it cannot be said that filing of the complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a prosecution for perjury on the basis of a statement recorded by the Enforcement Officer. This decision rendered by the apex court in the circumstances of that case can have no application to the circumstances of this case and, therefore, the said decision will not in any way help learned counsel for the revision petitioner to establish that the complaint as laid down by the complainant cannot be maintained. In view of the foregoing reasons, the conviction and sentence imposed for the offences proved against the revision petitioner under section 420 read with section 511 of the Indian Penal Code and section 193 of the Indian Penal Code, read with section 136 of the Income-tax Act, 1961, cannot be interfered with. In fine, the conviction and sentence imposed on the revision petitioner under section 420 read with section 511 of the Indian Penal Code and section 139 of the Indian Penal Code read with section 136 of the Income-tax Act, 1961, are confirmed and the criminal revision petition filed by the revision petitioner against the said conviction and sentence is dismissed. The conviction and sentence imposed against the revision petitioner for the offences under section 276C(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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