9911796707
TMI Blog1995 (3) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... ave exhibit P-19 statement also, in the office, admitting the suppression of income in the account book. Hence, he was prosecuted for fabrication of a document intentionally for the purpose of evading tax which acts are punishable under sections 193 and 420 read with section 511, Indian Penal Code, and section 276C, Income-tax Act, 1961 (hereinafter referred to as " the Act "). The learned Additional Chief Metropolitan Magistrate (E. O. I.) has found that though two documents were in the possession of the accused, concealing the real income, the requirements of the provisions of law to constitute the offences mentioned above have not been satisfied and, therefore, he could not be punished. As the accused was acquitted by the learned Additional Chief Metropolitan, Magistrate, the State has come forward with this appeal. Learned counsel for the Income-tax Department, Mr. K. Ramaswamy, would submit that this is a case in which the accused himself admitted the seizure of the documents from his residential premises and the documents showing the omission of all the sales and income deliberately and in spite of that, the lower court has found that the accused-respondent had not attemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Voluntary Disclosure Scheme. Anyhow the fact remains that though exhibits P-2 to P-7 prove the real turnover to the tune of Rs. 3,61,210.96, in exhibit P-8 account book he had shown only the sales for Rs. 57,301.85. The learned Additional Chief Metropolitan Magistrate also in his order would hold that the respondent had maintained two accounts, one the real transaction and another the account concealing the real income. It is because of this conduct of the respondent, that the Income-tax Department has filed this case against him. Another aspect to be mentioned is that the respondent did not file the return of income for 1976-77 till November 9, 1981, in spite of the notices sent by the Department. The return for 1976-77 should have been submitted by the respondent before the end of June 30, 1977. As the accused did not submit returns for 197677 and also for 1977-78, notices, exhibits P-20 and P-21 were issued directing to produce the books of account. The respondent sent a reply through his consultant under exhibit P-22 that the accounts were not finalised and, therefore, he required some more time to file the return. Thereafter, again notice was issued under exhibits P-23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Code, read as follows : " 192. Fabricating false evidence.--Whoever causes any circumstance to exist or makes any false entry in any book or record, or makes any document containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said ' to fabricate false evidence '. " The section makes it very clear that even if one makes any false entry in any book or makes any document containing a false statement with the intention of using it in a judicial proceeding, that constitutes an offence. So, it is not necessary that the document should have been used in the judicial proceedings to attract the punishment under the section, but if the document was created with the intention of using it as evidence in the judicial proceedings, the offence is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not necessary for the completion of this offence that the record should be used in a judicial proceeding so as to cause an erroneous opinion to be formed touching on a point material to the result of such proceeding. " In Mahabir Prasad Saraogi v. State of Bihar [1979] 120 ITR 663, the Patna High, Court also observes : The offence under section 193, Indian Penal Code, of fabricating false evidence for the purpose of being used in any stage of a judicial proceeding is complete as soon as the fabrication is complete. Even if the judicial proceeding in which the fabricated document may be intended to be used may not have commenced, the offence is complete as soon as the document is fabricated, as section 193, Indian Penal Code, does not require the actual user of the document. Section 193, Indian Penal Code, does not contemplate the user of the d5ocument in the judicial proceedings, but preparation of a document for the purpose of using it in the judicial proceeding itself is the offence. When the respondent had prepared exhibit P-8 and also produced the same before the Commercial Tax Officer, he would not prepare another account containing the real turnover for the purpose of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s relating to the real income of the assessee were seized in a raid, naturally the assessee cannot give a false income and, therefore, the return submitted by the assessee subsequently cannot be considered to be a voluntary return as observed above. In Jaswant Rai v. CBDT [1982] 133 ITR 19, the Delhi High Court has held that where the assessee has concealed his income, any subsequent act of voluntary disclosure would not affect the imposition of penalty for concealment. This court also in G. S. R. Krishamurthi v. M. Govindaswamy [1992] 195 ITR 137 has observed that the tax sought to be evaded on the concealed income by suppression of materials is capable of being determined on the evidence to be adduced. Therefore, simply for the reason that the respondent filed the return in the year 1981 for the taxable period 1976-77, the conduct of the respondent during the taxable period cannot become that of an honest assessee and that he never intended to attempt to conceal the income. Learned counsel for the respondent, Mr. S. A. Rajan, would contend that even if it is taken that exhibit P-8 document was created in the year 1976 for the purpose of using it in the income-tax proceedings, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not require consideration for the applicability to this case, as we are concerned with the question whether the fabrication of exhibit P-8 would amount to an attempt to evade tax. From the decisions referred to by Mr. K. Ramaswamy, learned counsel for the appellant, the filing of the income-tax return subsequently after the raid and seizure of the documents cannot be considered to be the voluntary disclosure of income. The very important conduct of the respondent is that though he was bound to submit the return of his income for the assessment year 1976-77 before June 30, 1977, he did not file the return within, time in spite of notices from the Department and, therefore, it shows his hesitation to file the income-tax return as he was not having the correct account. Somehow, he was not prosecuted for not filing the return within time. Therefore, his conduct in evading to file the return for four years is a circumstance indicating that he was relying on exhibit P-8 which is a fabricated document, for the purpose of filing his return and as the same was seized from him, he could not file the return in the manner in which he wanted to do. Learned counsel for the Department, Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court has held that though the amount was not paid to the supplier and the stamps were not affixed by the appellant, still it was an attempt on his part to commit the offence. In State of Maharashtra v. Mohd. Yakub, AIR 1980 SC 1111, the attempt to commit an offence is clearly defined. The prosecution in that case alleged that the accused therein attempted to smuggle silver from the country and for that purpose, the accused transported silver in a truck to the coast and it was intercepted and the silver was seized. The Supreme Court, observing the conduct of the accused, held that he had reached close to the seashore and had started unloading the silver there near a creek from where the sound of the engine of a sea-craft was also heard and, therefore, it was beyond the stage of preparation as most of the steps in the course of export by sea had been taken and the only step that remained to be taken towards the export of the silver was to load it on the sea-craft for leaving the territorial waters of India. But for the intervention of the officers of law, the export of the silver would have been completed. The Supreme Court observes : " What constitutes an ' attempt ' is a mix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be relating to the tax that was paid already. For the return to be submitted in June, 1977, the fabricated document, exhibit P-8, was created. Therefore, the creation of this document and also using it before the commercial tax authorities, namely, one wing of the tax authorities, prove that the respondent has started the process of committing the offence though the same was not completed. Therefore, certainly it is an attempt under section 420, Indian Penal Code, read with section 511, Indian Penal Code, and also section 276C of the Income-tax Act. The court below has not considered these aspects in the offence and, therefore, has wrongly held that no offence was made out against the respondent. For the reasons stated above, the order of acquittal passed by the lower court has to be set aside. Coming to the question of the sentence, as the disparity between exhibits P-8 and P-2 to P-7 is vast showing a difference of more than Rs. 2 lakhs, the punishment shall be under section 276C(1)(i) of the Act. For the offence under section 193, Indian Penal Code, a sentence of six months rigorous imprisonment and a fine of Rs. 1,000, that for the offence under section 420 read with secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
