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TMI Blog1991 (6) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Sub Registrar, Kodambakkam, for an apparent and recorded consideration of Rs. 5,86,000. He also presented Form No. 37-G (in duplicate) prescribed under rule 48G of the Income-tax Rules, 1962, and under section 269P(1) of the Income-tax Act, 1961, duly verified and signed, along with the instrument of transfer, mentioning in columns 8 and 9 the actual consideration for the transfer as well as the estimated fair market value of the property as Rs. 5,86,000. One such copy had been forwarded to the Income-tax Department by the Sub-Registrar. Accused Nos. 4 to 8 also delivered an application in Form No. 34A prescribed under rule 44A and tinder section 230A declaring against column No. 15(1)-"Full value of the consideration for which the property or the right, title or interest to or in the property is purported to be transferred"-as "Rs. 5,86,000" and, on the basis of such declaration, they obtained the same before the Sub-Registrar and got the sale deed registered all on the same date, viz., May 24, 1982. A search under section 132 at the residential and business premises of accused No. 1 was conducted on December 17, 1983 and it led to the seizure of a letter of arrange ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Officer and in furtherance of the common intention, committed offences punishable under-section 120B read with sections 193, 196, 420, 109, 34 and 37 of the Indian Penal Code, 1860, and sections 276C(1), 277 and 278 of the Income-tax Act, 1961, in one series of facts connected together to form the same transaction. The Income-tax Officer, Film Circle-I, 121, Nungambakkam High Road, Madras-600 034, launched a prosecution against all the accused for the aforesaid offences on March 23, 1984, which is now pending in the aforesaid calendar case. On receipt of process, accused No. 1 has. come forward with the present action invoking the inherent jurisdiction of this court to quash the criminal proceedings initiated against him. Mr. N. C. Raghavachari, learned senior counsel appearing for the petitioner, accused No. 1 would, with all vehemence, virtually make frontal attack as to the sustainability of the criminal proceedings by pressing the following points for consideration : (1) The proceedings initiated consequent on the seizure of the letter of arrangement dated February 18, 1982, revealing the real nature and extent of the consideration for the conveyance, before the raid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of section 271, section 279(1A) prescribes that such person shall not be proceeded against for an offence under section 276C or section 277 and such being the legal position, the petitioner, in the instant case, cannot be prosecuted for those offences unless and until penalty proceedings had been initiated and ultimately culminated in a final order being passed. (5) The prosecution of the petitioner for the offences under the Indian Penal Code, 1860, is not legally permissible, as there is no sanction for such prosecution under section 279(1) of the Income-tax act, 1961 and, if the complaint had been filed limited to offences under the Income-tax Act alone, there was a possibility of such offences being compounded under the benevolent provisions adumbrated in sub-section (2) of section 279 and the launching of prosecution for offences under the Indian Penal Code, which are non-compoundable along with offences under the Incometax Act which are compoundable, caused prejudice to the cause of justice. (6) Since the vendor of the petitioner, viz., accused, filed a revised return of income on February 28, 1984, before the assessment is made giving particulars of income subsequent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date and before whom the petitioner was stated to have given a sworn statement which is false to his knowledge as respects the consideration for the conveyance of the landed property by means of an execution of a sale deed is judicial proceeding, thereby by implication, making that authority, for all practical purposes, a " court ". This was a vexed question and various hues of views were available emerging from various High Courts and consequently agitated before the apex court of the judicial administration of this country, which happened to consider this aspect of the matter and rendered a decision, which, at the present juncture, I feel is purely academic consequent to the amendment of section 136 of the Income-tax Act that came into being by the Finance Act, 1985, with retrospective effect from April 1, 1974. The section as amended reads as follows : "Any proceeding under this Act before an income-tax authority shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code, 1860 (45 of 1860), and every income-tax authority shall be deemed to be a civil court for the purposes of section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than the raiding authority, namely, the Income-tax Officer, Film Circle-I, 121, Nungambakkam High Road, Madras-34. It is on this premise that learned senior counsel would contend that the embargo of section 195(1)(b)(i) of the Code of Criminal Procedure, 1973, would come into free play, the consequence of which is that the prosecution, as launched, shall stand vitiated. Section 195(1)(b)(i) of the new Code, envisaging a bar against prosecution, except on a complaint by the court, is limited in its operation only to the offences mentioned in that section, when such offences are alleged to have been committed in or in relation to any proceeding in any court. The crux of the embargo created by that section relates to some proceeding in a court in relation to which the offences (e.g., fabrication of false evidence) is alleged to have been committed. The words "in relation to" in this clause are very general and are wide enough to cover proceeding which may not have begun when the offence was committed, but was begun afterwards. A complaint by the court is necessary not only where the offence is committed pendente lite but also where the offence was committed in anticipation of a proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e answer, in such a situation, would be that the prosecution, as launched without a proper complaint under section 195(1)(b)(i) of the Criminal Procedure Code from that court, shall stand vitiated. But that is not the situation here. Would it mean that, in cases where, in the course of the same transaction, certain other distinct offences not falling within the purview of section 195(1)(b)(i) of the Criminal Procedure Code had been committed, in addition to the offences falling within the purview of that section and complaint in regard to those offences had been filed without a complaint from the court under the provisions of section 195(1)(b)(i) of the Criminal Procedure Code, such complaint would be thrown out lock, stock and barrel in the sense of vitiating the prosecution in its entirety or would the complaint so filed become invalid only in respect of those offences falling under the purview of the embargo created by section 195(1)(b)(i) of the Criminal Procedure Code. Many an occasion arose for consideration of such a moot question by High Courts as well as by the Supreme Court. Worthwhile it is, at this juncture, to refer to those scintillating epoch-making decisions, so a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder some other section of the Penal Code. In our judgment, the contention raised by learned counsel for the appellants is without any substance so far as the present case is concerned. The charge for the offence under section 297, Penal Code, could, in no circumstance, as pointed out by the High Court, be described as falling within the purview of section 195, Criminal Procedure Code. The act of trespass Was alleged to have been committed subsequent to the making of the false report and all the ingredients of the offence that have been held to have been established on the evidence concern the conduct of the appellants during the post-report period. In these circumstances, no serious contention could be raised that the provisions of section 195 would stand defeated by the Magistrate having taken cognizance of the offence under that section. As regards the charge under section 500, Indian Penal Code, it seems fairly clear both on principle and authority that, where the allegations made in a false report disclose two distinct offences, one against the public servant and the other against a private individual, that other is not debarred by the provisions of section 195 from seekin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court under section 195, Criminal Procedure Code, while in the other, cognizance can be taken of the offence on the complaint of the person defamed. It could not be denied that the accused could be tried of charges under sections 182 and 500, Indian Penal Code, separately on same facts provided the public servant as well as the person defamed made complaints. If that is so, there is no reason why one cannot be tried independently of the other so long as the requirements of each are satisfied. Harris C. J., while delivering the Full Bench decision in question, examined all the earlier cases of the Calcutta High Court and observed that, where, upon the facts, the commission of several offences is disclosed, some of which require sanction and others do not, it is open to the complainant to proceed in respect of those only which do not require sanction; because, to hold otherwise would amount to legislating and adding very materially to the provisions of sections 195 to 199, Criminal Procedure Code. Sections 195 to 199 deal with the requisites for the prosecution of certain specified offences and the provisions of those sections must be limited to prosecutions for the offences act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian Penal Code, though in truth and substance, the offence falls in the category of sections mentioned in section 195, Criminal Procedure Code. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of section 195, prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it." In Durgacharan Naik v. State of Orissa, AIR 1966 SC 1775, their Lordships happened to consider the effect of prosecution under two distinct offences falling under sections 353 and 186 of the Indian Penal Code on the same facts without sanction under section 195, Criminal Procedure Code, and stated thus (paragraphs 5 and 6 at page 1778): "(5) We pass on to consider the next contention of the appellants that the conviction of the appellants under section 353, IPC, is illegal because there is a contravention of section 195(1) of the Criminal Procedure Code which requires a complaint in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Code has not provided for sanction of court for taking cognizance of that offence. It was said that the two offences, being fundamentally distinct in nature, could be separately taken cognizance of. That they are distinct in character is patent from the fact that the former is made non-compoundable while the latter remains compoundable. In one, for the initiation of the proceedings, the Legislature requires the sanction of the court under section 195, Criminal Procedure Code, while, in the other, cognizance can be taken of the offence on the mere complaint of the person defamed. It is pointed out in the Full Bench case that, where, upon the facts, the commission of several offences is disclosed some of which requiring sanction and others not, it is open to the complainant to proceed in respect of those only which do not require sanction because, to hold otherwise would amount to legislating and adding very materially to the provisions of sections 195 to 199 of the Criminal Procedure Code. The decision of the Calcutta case has been quoted with approval by this court in Basir-ul-Huq v. State of West Bengal [1953] SCR 836 ; AIR 1953 SC, 293 in which it was held that, if the allegati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ambit of that section. The offences under sections 147, 148, 457, 427 and 435, IPC, are offences distinct from the alleged violation of the prohibitory order. Even on the footing that an offence under section 188, IPC, had been committed, the want of complaint by the Tahsildar relating to that would not bar the Magistrate from taking cognizance of the other offences which are distinct and separate offences and, in fact, graver offences. Those offences could stand independently whether there had been an order under section 144, Criminal Procedure Code, or not." From the views expressed as above by the learned judge of this court and their Lordships of the Supreme Court, it is crystal clear that, if, in the course of the same transaction, distinct offences are made out apart from commission of offences falling within the ambit or the purview of section 195(1)(b)(i), Criminal Procedure Code, and a complaint had been lodged in respect of all the offences without a complaint emanating from the court under the provisions of section 195(1)(b)(i), Criminal Procedure Code, the entirety of the prosecution shall not stand vitiated and, if at all, that part of the prosecution as relata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the form so presented would prima facie make out an offence falling under sections 193 and 196 of the Indian Penal Code. No doubt, the proceedings before the Sub Registrar, Kodambakkam, can, by no stretch of imagination, be construed to be a judicial proceeding. It is to be remembered at this juncture that one such copy of Form No. 37-G is to be forwarded by the Sub-Registrar to the Assessing Officer. Such forwarding to the Assessing Officer cannot at all be stated to be a ritualistic formality in the process of registration of the sale deed by the Sub-Registrar. There is a purpose behind such forwarding of the said form to the Assessing Officer. The purpose for which it was forwarded is rather obvious. The sale consideration specifically mentioned in Form No. 37-G could be taken into account by the Assessing Officer in the process of completion of assessment of the respective parties affected by the conveyance. An assessment proceeding by the Assessing Officer is definitely judicial proceeding as per the provisions adumbrated under section 136 of the Income-tax Act. No doubt it is true that, at the time when Form No. 37-G along with the instrument of transfer had been pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent proceedings in the case of the petitioner, accused No. 1, had not been completed and the tax liability determined. Such being the situation, criminal proceedings had been initiated for various offences under sections 276C, 277 and 278 of the Income-tax Act, I961. A perusal of the provisions of those sections, it is said, would point out that the punishment for each of those offences is linked to the quantum of tax and, on that premise, it is contended that unless and until the tax liability is determined, it is not legitimately permissible for the trial court to impose upon the petitioner, accused No. 1, the requisite punishment, in case he is found guilty of those offences and therefore, the prosecution, as launched, cannot be otherwise than premature. Of course, this submission, as propounded, on the face of it, looks highly credible. But, its credibility, I am of the view, would get irretrievably effaced, on deeper scrutiny of the sanguine provisions adumbrated in sections 276C, 277 and 278 of the Income-tax Act. Section 276C, which deals with cases of wilful failure to furnish returns of income has been replaced by new section 276C, which deals with cases of wilful attemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gorous imprisonment for minimum term of seven years and fine and, in any other case, punishment will be rigorous imprisonment for a minimum term of three years and fine. It looks as though, at first sight, for awarding of punishment under those sections, assessment has to be completed and the quantum of tax determined. But, in reality, it is not so. Section 276,C deals with attempt at evasion of any tax, penalty or interest chargeable or imposable under the Act. Therefore, what is contemplated is evasion, before charging or imposing tax, penalty or interest. That may include wilful suppression before assessment and completion. But sub-section (2) deals with "evading payment of any tax, penalty or interest under this Act". The words "chargeable or imposable" are not there. What the said sub-section further says is "without prejudice to any penalty that may be imposable on him under any other provision of this Act, be punishable" and, therefore, sub-section (2) takes in cases of tax evasion after "charging" or "imposition". Evasion, after completion of assessment, also comes within the operation of the sub-section. There is also an Explanation appended to section 276C and what it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of income is a matter for evidence during the course of trial and not to be agitated in a proceeding like the one on hand. Even assuming for argument's sake that the loss sustained is to such an extent that there is no possibility of any tax liability, it cannot be stated that there is no evasion of tax. The amount concealed in a particular assessment year is chargeable to tax at the rates then in force and, in the process of "carry forward and set off of loss", the amount of concealed income will go in reducing the loss for the particular year and thereby consequently producing a tax effect. Useful reference can be made here to Explanation (iv) appended to section 276C, which prescribes that a wilful attempt to evade any tax, penalty or interest chargeable or imposable under this Act or payment thereof shall include a case where any person causes any other circumstances to exist which would have the effect of enabling such person to evade any tax, penalty, or interest chargeable or imposable under this Act or payment thereof. The petitioner, accused No. 1, had actually understated the sale consideration in Form No. 37G, in a sizable sum, which produced a tax effect in the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 277 of the Income-tax Act cannot be launched until reassessment proceedings initiated against the assessee are completed. A mere expectation of success in some proceeding in an appeal or a reference under the Income-tax Act cannot come in the way of the institution of criminal proceedings under section 276C and section 277 of the Act. The criminal court no doubt has to give due regard to the result of any proceedings under the Income-tax Act having a bearing on the question in issue and, in appropriate cases, it may drop the proceedings in the light of an order passed under the Act. It does not, however, mean that the result of a proceeding under the Act would be binding on the criminal court. The criminal court has to judge the case independently on the evidence placed before it. Section 279(1A) does not provide that the mere fact that there is possibility of the Commissioner passing an order waiving or reducing the penalty imposed or imposable on the accused under section 271(1)(c), prosecution for an offence under section 276C or section 277 shall not be instituted. In appropriate cases, the criminal court may adjourn or postpone the hearing of a criminal case t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecting Assistant Commissioner imposing penalty which was pending. Thereafter, the Department launched prosecution against the assessee under section 277 of the Income-tax Act, 1961. The assessee filed a petition in the High Court under section 482 of the Criminal Procedure Code 1973, for quashing the criminal proceedings which were an abuse of the process of the court, because, the order of the Tribunal was not final and the penalty proceedings were open to correction in the light of the opinion given by the High Court in the income-tax reference which was pending. The jurisdictional foundation might be knocked off and fresh penalty proceedings might have to be initiated by the Income-tax Officer, and in that event, he might take different view so as to absolve the assessee altogether from the imposition of penalty and that, even if the Income-tax Officer did not do so, there were two other higher forums in which such a finding could be arrived at. It was held under such circumstances as follows (headnote) : "Mere expectancies should not stand in the way of the criminal court from proceeding in the matter. The High Court could not stop any proceedings against an assessee in a cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot stand in the way of the criminal court proceeding in the matter. Upholding the contention of the Revenue, this court said thus (headnote) : "The fact that the Tribunal has passed an order of remand in the assessment proceedings would not be a bar to prosecution for offences under the Income-tax Act. Mere expectancies should not stand in the way of the criminal court proceeding in the matter. The High Court cannot stop any proceedings against an assessee in a criminal court on mere expectancy." In view of what has been stated above, this submission has to fall to the ground. The fourth submission reflects really the manifestation of the third submission as to the prosecution being premature from a different angle, focussed from the point of view of the penalty proceedings culminating in reduction or waiver of penalty imposed unlike the third submission which was projected by linking the punishment with the quantum of tax sought to be evaded. Section 271 of the Income-tax Act deals with the consequences flowing from the failure to furnish returns, comply with notices, concealment of income etc. The officers competent to proceed under this section are specifically mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such income, voluntarily and in good faith, made full and true disclosure of such particulars. He had co-operated in any enquiry relating to the assessment of his income and lastly, these things apart, he had either paid or made satisfactory arrangements for the payment of any tax or interest payable in consequence of an order passed under this Act in respect of the relevant assessment year. In a nutshell, the operation of the section is restricted to the existence of the contingencies as referred to above and not otherwise. The provisions of this new section 273A are substantially similar to the provisions of sub-section (4A) of section 271, which was deleted by the Taxation Laws (Amendment) Act, 1975, with effect from October 1, 1975. Section 279(1A) prescribes that a person shall not be proceeded against for an offence under section 277 in relation to the assessment year in respect of which the penalty imposed or imposable on him under clause (iii) of sub-section (1) of section 271 has been reduced or waived by an order under section 273A. In other words, this section cannot come into play at all, unless and until, as a matter of fact, there is reduction or waiver of penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner had exercised his discretion to prosecute the petitioner, accused No. 1, for the offences under the Income-tax Act, 1961, inclusive of sections 276C and 277. From the authorisation so given, it is inferable with ease and grace that the Commissioner had exercised his discretion not to reduce or waive the penalty imposable on the petitioner, accused No. 1, on the existence of certain factual situation in the case. Such a factual situation is rather obvious from the narration of the facts in the complaint itself. Admittedly, the petitioner, accused No. 1, neither filed any return of income nor any revised return voluntarily and in good faith, making a full and true disclosure of all his income before the raid. He had neither paid nor made satisfactory arrangements for the payment of any tax or interest payable in consequence of an order passed under the Act in relation to the assessment year, viz., 1982-83. The question as to when the protection or immunity to section 279(1A) can be availed of by an assessee had been decided by this court in M. R. Pratap v. V. M. Muthukrishnan, ITO [1977] 110 ITR 655, wherein a learned judge of this court held (headnote) : "The protection or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , whether known or unknown, has committed an offence, but does not include a police report. Explanation.-A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint: and the police officer by whom such report is made shall be deemed to be the complainant." Section 190 of the Code of Criminal Procedure, 1973, dealing with cognizance of offences by Magistrates figures in Chapter XIV, under the caption, "Conditions requisite for initiation of proceedings" and it is couched in the following terms : " 190. Cognizance of offences by Magistrates.-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2) may take cognizance of any offence, (a) upon receiving a complaint of facts which constitute such offence ; (b) upon a police report of such facts; (c) upon information received from any person other than police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief judicial Magistrate may empower any Magistrate of the second cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the contention that the offences under the Indian Penal Code, 1860, are not legally permissible, as there is no sanction for such prosecution under section 279(1) of the Income-tax Act, 1961, cannot at all be countenanced. As respects the other prong of the submission, no prejudice can either be said to have been caused to the petitioner, accused No. 1, by the launching of the prosecution for offences both under the Indian Penal Code as well as under the Income-tax Act. Admittedly, in one series of facts connected together to form the same transaction, the offences under both the enactments were said to have been committed. There can be no bar for trial of those offences. But what is prohibited under section 26 of the General Clauses Act, 1897, is that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. A profitable reference may also be made to the salutary provisions of section 71 of the Indian Penal Code dealing with the limit of punishment of offence made up of several offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a revised return of income on February 28, 1984, with full and correct particulars of income under the Amnesty Scheme pursuant to Circular No. 451, dated February 17, 1986, and accused revealed the full and correct particulars of income and had also paid the tax due on the concealed income before the extended date, viz., September 30, 1986 (the original date being March 31, 1986). The Amnesty Scheme Circular, it was further argued, had been considered favourably by the Income-tax Appellate Tribunal (Madras Bench-D) in its order I. T. Acq. No. 2/Mds./85, dated May 1, 1987. In such a situation, the argument further goes, it cannot be stated that any offence whatever, inclusive of evasion or attempted evasion of tax under the Income-tax Act, had been committed and, consequently, the offences under the Indian Penal Code, with respect to which accusations had been levelled against him, which are akin or similar to the offences under the Incometax Act would get extinguished. In countenancing such an argument, it is said for the Revenue, that the Amnesty Scheme envisaged in the aforesaid circular is applicable only to voluntary disclosures of income and not in cases where full particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nity given by the circulars be availed of by assessees whose premises have been searched by the tax authorities? Answer.-No. Question No. 19.-Kindly clarify the expression "before detection by the department" ? Answer.-If the Income-tax Officer has already found material to show that there has been concealment, that would mean the Department has detected the concealment. If the Income-tax Officer only had prima facie belief, that would not mean that concealment has been detected." The answers to questions Nos. 12 and 19, as extracted above, would make it abundantly clear that the Amnesty Scheme could not at all enure to the benefit of the assessee, accused No. 1. The finding of the Tribunal as such as to the availing of the Amnesty Scheme by accused No. 1 does not appear to be correct as the same is not in consonance with the letter and spirit of the circular. The applicability of the Amnesty Scheme, as revealed by the answer to question No. 36, will arise only in a case of disclosure of concealed income and payment of tax due on the extra consideration before the specified date, on the disclosure having been made voluntarily before even any detection. The finding as given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what has been discussed above, it goes without saying that this submission also cannot hold water. The seventh submission, in short, deals with the alleged non-contemplation of prosecution by the Legislature of persons presenting Form No. 37-G, prescribed under rule 48G and section 269P(1) containing false verification for any offence whatever either under the Indian Penal Code or under the Income-tax Act. By such a submission, a new dimension is sought to be given to Chapter XX-A dealing with the acquisition of immovable properties in certain cases of transfer to counteract evasion of tax, introduced for the first time by the Taxation Laws (Amendment) Act, 1972, with effect from November 15, 1972, consisting of sections 269A to 269S, in cases of prosecution for violation of certain provisions therein. Section 276AA inserted by the Income-tax (Amendment) Act, 1981, with effect from July 1, 1982, provides punishment for failure to comply with the provisions of section 269AB or sub-section (5) of section 269-1. Section 269AB reads thus: "269AB. (1) The following transactions that is to say, (a) every transaction involving the allowing of the possession of any immovable proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ps for compliance with the provisions of clauses (a) and (b)." It is worthwhile to note here that section 276AA had been omitted by the Finance Act, 1986, with effect from October 1, 1986. In the case on hand, though acquisition proceedings had been initiated at the time when the said section was in force, such proceedings did not at all culminate in any final order being passed before cessation of operation of that section. As such, there could not have been any violation contemplated under section 276AA for attracting the penal consequences provided therein. From the omission of section 276AA, an argument is sought to be made out by learned senior counsel that in acquisition proceedings initiated under Chapter XX-A, the Legislature could not have contemplated prosecution of persons violating the provisions of the said Chapter and the Revenue has to rest with the acquisition of the immovable properties and taking possession of the same by using such force as may be necessary, for such purpose, which in my view, cannot at all commend acceptance. What was made punishable under the deleted section 276AA, as already indicated, was violation of the provisions of section 269AB or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the extent indicated in the section, depending upon the quantum of tax which would have been evaded, if the statement or account had been accepted as true. The present section 277 was substituted by the Taxation Laws (Amendment) Act, 1975, with effect from October 1, 1975, providing for graded punishment depending upon the quantum of tax sought to be evaded. Before such substitution, under the said section, there was no graded punishment and this is made clear by the old section 277, which reads as follows: "277. False statement in declaration.-If a person makes a statement in any verification under this Act or under any rule made thereunder, or delivers an account or statement which is false, and which he either knows or believes to be false, or does not believe to be true, he shall be punishable with rigorous imprisonment for a term which may extend to two years ; Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than six months." It is thus clear that even on the date when Form No. 37-G came into force, i.e., November 15, 1972, false verification either unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f criminal conspiracy.-When two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy : Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. "Explanation.-It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object." A criminal conspiracy is an agreement between two or more persons to do or cause to be done (1) an illegal act (2) legal act by illegal means. Section 43, Indian Penal Code, defines the word "illegal" as meaning and including everything which is an offence or which is prohibited by law or which furnishes a ground for a civil action. The offence of conspiracy is an independent offence and though the offences are committed in the course of the conspiracy, the liability for the conspiracy will not disappear. It is not like abetment to depend upon a substantive offence to be committed. The conspiracy precedes the commission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence or by both or from the conduct of the parties. The fact that there are no materials in the shape of allegations in the complaint indicating direct evidence for the proof of the conspiracy does not at a11 mean that there are no materials in the complaint, in bid to prove the conspiracy alleged therein. For the construction of a fine superstructure of conspiracy there must be materials in the shape of plethora of facts and abundant circumstances, inferable from the facts stated therein serving as an edifice or foundation for such superstructure. The alleged act of accused Nos. 1 and 4, in entering into a letter of arrangement on February 18, 1982, itself throws a flood of light as to the illegal means by which they reached such an agreement or arrangement, in a bid to cause loss to the exchequer by the evasion of tax legitimately due by them, if they have stated the real consideration for the transfer in the sale deed, as well as in the statements filed by them under Forms Nos. 37-G and 34-A all on one and the same date, viz., May 24, 1982. There is also a very well-planned act of omission on the part of accused No. 1 in not filing the return of income for the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... showing the understated sale consideration and have thus committed the offences punishable under section 420 of the Indian Penal Code, 1860. . . 26. The fourth accused, by obtaining the said certificate under section 230A of the Income-tax Act by about May 24, 1982 based on the false sale consideration noted therein, has cheated the Income-tax Officer into issuing that certificate and thereby committed the offence punishable under section 420 of the Indian Penal Code, 1860." The materials disclosed as above, I am of the view, prima facie constitute an offence under section 420, Indian Penal Code, and whether such an offence is made out or not is a matter for the trial court by giving a finding on the materials, in the shape of evidence to be placed before it and any further delving discussion, if made, is likely to cause irreparable prejudice to the respective cases of the parties. As such, this part of the submission also merits little substance. In view of what has been discussed above, it goes without saying that this petition deserves to be allowed in part only in so far as it relates to the offences under sections 193 and 196 of the Indian Penal Code, emerging from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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