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TMI Blog2018 (12) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... to appreciate the contention of the accused in the right perspective. - Decided in favour of assessee - Crl.R.C. No.111 of 2011 & Crl.M.P. No.1 of 2011 - - - Dated:- 14-12-2018 - Mr. Justice P.N. Prakash For the Revision Petitioner : Mr. P. Ramesh Kumar For the Respondent : Mr. N. Baskaran Public Prosecutor for I.T. Department ORDER This Criminal Revision Case has been preferred seeking to set aside the order dated 03.01.2011 passed by the Additional Chief Metropolitan Magistrate (E.O.-I), Chennai in Crl.M.P. No.2435 of 2010 in E.O.C.C. No.82 of 2005 and thereby, discharge the accused. 2 The facts in brief, leading to the filing of this criminal revision case, are as under: 2.1 The Income Tax Department launched a prosecution in E.O.C.C.No.82 of 2005 before the Additional Chief Metropolitan Magistrate (E.O.I), Egmore, Chennai, against Sayarmull Surana, the petitioner herein/accused, for the offence under Section 276C(2) of the Income Tax Act, 1961 (for short the IT Act ). 2.2 It is the case of the Income Tax Department that for the assessment year 1998-1999, the accused filed income tax returns on 16.06.1998, wherein, he had shown his total income a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich shall not be less than three months but which may extend to two years and shall, in the discretion of the Court, also be liable to fine. Explanation: For the purposes of this section, a wilful attempt to evade any tax, penalty or interest chargeable or imposable under this Act or the payment thereof shall include a case where any person -- (i) has in his possession or control any books of account or other documents (being books of account or other documents relevant to any proceeding under this Act) containing a false entry or statement; or (ii) makes or causes to be made any false entry or statement in such books of account or other documents; or (iii) wilfully omits or causes to be omitted any relevant entry or statement in such books of account or other documents; or (iv) causes any other circumstance to exist which will have the effect of enabling such person to evade any tax, penalty or interest chargeable or imposable under this Act or the payment thereof. The expression wilfully admits employed in the above provision is an inclusive one, despite which, it does not, in any way, change the common and fundamental meaning of it. The allegatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Public Prosecutor appearing for the Income Tax Department have no bearing on the facts obtaining in this case, inasmuch as, in this case, pre-charge evidence has been adduced by the prosecution and the accused has cross-examined the witnesses and through P.W.1, he has marked the order dated 29.06.2007 passed by the Income Tax Appellate Tribunal as Ex.P.30. Likewise, through P.W.1, he has marked the order dated 15.05.2008 passed by the Commissioner of Income Tax (Appeals) as Ex.P.31. 7 At this juncture, it may be profitable to refer to the judgment of the Supreme Court in Commissioner of Income Tax, Mumbai vs. Bhupen Champak Lal Dalal and another [(2001) 3 SCC 459] , wherein, the Supreme Court, relying upon Jayappan (supra), has held as under: 3. The prosecution in criminal law and proceedings arising under the Act are, undoubtedly, independent proceedings and, therefore, there is no impediment in law for the criminal proceedings to proceed even during the pendency of the proceedings under the Act. However, a wholesome rule will have to be adopted in matters of this nature where courts have taken the view that when the conclusions arrived at by the Appellate A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition, 1977 : The question whether an act or omission is wilful arises oftener in criminal than in civil causes; since in the former the general principle requiring the presence of mens rea excludes from criminality acts done accidentally and unintentionally and even acts done intentionally under honest but mistaken belief in the existence of facts which, if true, would have made the acts lawful or excusable. 10 In the case at hand, the accused filed his returns on 16.06.1998 showing his income at ₹ 48,150/-. The Income Tax Officer conducted investigation and determined the income at ₹ 29,05,126/-. Challenging the said determination, the accused took the matter on appeal to the Commissioner of Income Tax (Appeals), where, it was reduced to ₹ 26,69,470/- vide order dated 26.09.2003. The accused pursued the matter before the Income Tax Appellate Tribunal, which, set aside the order of the Commissioner of Income Tax (Appeals) and remanded the matter back to him. After remand, the Commissioner of Income Tax (Appeals), by order dated 15.05.2008 (Ex.P.31), determined the tax at ₹ 2,82,650/-. 11 It may be necessary to state here that the authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X
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