9911796707
TMI Blog1992 (1) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... first accused is a partnership firm carrying on business in surgical goods. Accused Nos. 2 to 5 are partners of the first accused firm who were in charge of, and were responsible to, the first accused firm for the conduct of the business of the first accused during the relevant time. They are assessees. The return of income of the first accused for 1976-77 showing an income of Rs. 1,02,470 was filed on August 4, 1976. It was signed and verified by the second accused on August 2, 1976. Along with the return, the connected statements were also delivered. A statement showing details of sundry debtors and creditors was also delivered on August 24, 1976. Net profit was shown as Rs. 1,13,139. Total income for income-tax purposes was shown as Rs. 1,02,470. The Income-tax Officer completed the assessment on November 18, 1976, under section 143(3) of the Act on a total income of Rs. 1,52,190. Searches were conducted at the premises of the first accused firm and its allied firms and the residences of the partners and connected places in June, 1980, under the provisions of section 132 of the Act. During the course of the search, a large number of account books and documents were seized and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the income-tax assessment before the Income-tax Officer for 1976-77, intentionally fabricated false books of account of the first accused and thus committed offences punishable under section 193, Indian Penal Code, read with section 136 of the Income-tax Act, 1961, and all the accused have corruptly used the aforesaid false account books as genuine evidence in the course of the assessment proceeding for 1976-77 and thus committed an offence punishable under section 196, Indian Penal Code, read with section 136 of the Income-tax Act and all the accused have deceived the Income-tax Officer and induced him to deliver the assessment order for 1976-77 on the false account books, returns and statements and have committed offences punishable under section 420, Indian Penal Code, and all the accused wilfully attempted to evade tax, penalty or interest imposable under the Act on the first accused by making false entries in the account books of the first accused and by being in possession of such books of account and have thus committed an offence under section 276C of the Income-tax Act read with section 278B thereof and all the accused delivered to the Income-tax Officer on or about Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in these cases had arisen subsequent to October 1, 1975, inasmuch as the assessment years were 1976-77 to 1979-80, the relevant accounting years being the years ending on March 31, 1976, to March 31, 1979. He would further submit that specific allegations are made in the complaint against all the partners with regard to the offences alleged. In these complaints, in paragraph 4, it is alleged as follows: " The second to fifth accused are partners of the first accused firm who were in charge of and were responsible to the first accused firm for the conduct of business of the first accused during the relevant time. " Then, in paragraph 7 of the complaint, allegation regarding the filing of the original return, signed and verified by the second accused and filed on August 4, 1976, August 5, 1977, August 28, 1978, and August 9, 1979, for the aforesaid assessment years respectively and the completion of the assessment proceedings on November 18, 1976, September 26, 1977, October 19, 1978, and September 12, 1979, respectively, has been stated. Then the search made in June, 1980, in the premises of the first accused concern and sister concerns and investigation thereon has been refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (at page 380): "Under section 278B of the Act, the basic requirement which the prosecution must prove will be that the petitioners were in charge of, and were responsible to, the firm for the conduct of the business of the firm, and it is only then that they can be vicariously prosecuted along with the company." In Basal Tool Co. v. ITO [1987] 167 ITR 24 (P H) ; Jasbir Singh v. ITO [1987] 168 ITR 770 (P H) ; Puran Devi v. Z. S. Klar, ITO [1988] 169 ITR 608 (P H) ; Murari Lal v. ITO [1985] 154 ITR 227 (P H) Jai Gopal Mehra and Smt. Suman Mehra v. ITO [1986] 161 ITR 453 (P H) Parmeet Singh Sawney v. Dinesh Verma [1988] 169 ITR 5 (Delhi) and S. Vaidyanathan, ITO v. Dr. B. Mathuram and Sons [1989] 179 ITR 463 (Mad), similar view was taken. Mr. V. Ramachandran would submit that, regarding accused Nos. 3 to 5, no allegations were made in these complaints. I am unable to agree with the contention in view of the allegations made in paragraph 12 of the complaint which I have extracted in paragraph 6 supra wherein it is specifically stated that all the accused conspired to fabricate false evidence and other offences regarding which necessary allegations are made. Mr. K. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there was no settlement as claimed by the petitioner and that the revised return was submitted only after the original return was finalised and a search was made in which voluminous incriminating documents were seized and while so, these proceedings cannot be quashed. He would add that, in a proceeding tinder section 482, Criminal Procedure Code, only the allegations in the complaint are to be taken into account to examine whether the allegations are there to make out the offences or not and other extraneous matters cannot be looked into. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi, AIR 1983 SC 67, the apex court has laid as follows (at page 70) : " It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything if no of fence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under section 482 of the present Code. " I am clear that the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on November 18, 1976, September 26, 1977, October 19, 1978 and September 12, 1979, respectively. The search was conducted on June 7, 1980. More than four months thereafter, the revised returns were filed on October 16, 1980. In S. R. Arulprakasam v. Smt. Prema Malini Vasan, ITO [1987] 163 ITR 487, this court has held on the facts of that case that as the filing of a revised retire will not expatiate the contumacious conduct on the part of an assessee in not having disclosed the true income in the original return itself and will not be a bar to the initiation of penalty proceedings, it will not likewise be a bar to the launching of criminal prosecution. In Hakam Singh v. CIT [1980] 124 ITR 228, the Allahabad High Court has held that the action of an assessee in filing a return after the books of account had been seized at a raid would be impelled by the compelling circumstance that the assessee was likely to be dealt with under the penal provisions of the Income-tax Act and the action of an assessee in filing a return under such a constraint cannot be said to be voluntary. In view of the above facts and pronouncements of this court and the Allahabad High Court, these criminal pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
