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TMI Blog1983 (8) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... irm, viz., Sunandaram Deka. The firm had partners, viz., Sunandaram Deka, Promode Chandra Deka, Mukul Chandra Deka, Sanjeeb Kumar Deka and Rajib Kumar Deka and the late Kulen Deka. All the other partners were sons of Shri Sunandaram Deka. The prosecution was started under the aforesaid sections for the assessment year 1981-82. The partnership firm filed the first return on April 3, 1982, which was marked as exhibit-1 and duly signed and verified by its partner, Sunandaram Deka. In the return, the total income was shown as Rs. 1,50,720 which included income from house property at Rs. 1,16,444 and income from business at Rs. 34,275. The assets were shown at Rs. 12,03,027 and the value of the stores at Rs. 3,25,524. The firm filed another re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is court is quite conscious of the self-imposed restrictions in such appeal. I may state here that in such an appeal if two views are possible, the view in favour of the accused has to be accepted and that apart, the impugned judgment and order can be interfered with only if it is perverse or based on no evidence on record. In this connection, Mr. Gogoi, learned counsel appearing on behalf of the accused-respondent has placed reliance on two decisions of the apex court in Ashok Kumar v. State of Rajasthan, AIR 1990 SC 2134 ; [1991] 1 SCC 166, more particularly on paragraph 12 and Sham Kant v. State of Maharashtra, AIR 1992 SC 1879 ; [1992] Supp. 2 SCC 521 (paragraph 30). The apex court in the above two decisions has reiterated the well-sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le mental state in a criminal trial under the Act. I accept the contention of Mr. Gogoi that, as this section was inserted subsequent to the present prosecution, the Income-tax Department is not entitled to get the benefit of the said provision. In other words, just like any other criminal case, in the present case also, it is the duty of the prosecution to prove the case beyond all reasonable doubt. I make it clear that I am not entering into the effect of section 278E and I leave the matter open to be decided in future if any such occasion arises as to what extent the liability of the prosecution is relieved in such prosecution. From the evidence of the independent witnesses and other witnesses on record I find that exhibit-1 and exhibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed persons have taken the very fair step of an honest businessman by admitting a sum of Rs. 4,00,000 odd for adding in the total income for the purpose of assessment. According to the firm, a sum of Rs. 5,00,000 was borrowed from Malchand Matilal Kothari, Gauhati, and a copy of the same was also furnished to the Income-tax Officer. But the prosecution wants to bring home the charge only on the ground that the said firm did not send any confirmation letter and that on the basis of the letter from the Income-tax Officer, Gauhati, it tried to establish that there was evasion of tax. The letter from the Income-tax Officer was not produced. The accounts of the said firm, Malchand Matilal Kothari, filed before the Income-tax Officer, Gauhati, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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