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TMI Blog1987 (8) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 and 1978-79, the first respondent was assessed to income-tax on the basis of the returns filed and the account books produced before the Incometax Officer. Later, on February 14, 1979, during a search of the premises of the first respondent, several incriminating accounts and documents were seized and a perusal of the same showed that the returns submitted earlier were false and the account books produced in support of the returns were also false. Purchase figures had been inflated and the alleged purchasers were found to be bogus. The original purchase bills produced at the time of the assessment were found to contain interpolations when compared with the documents seized during the search. After the search, statements were obtained and the second respondent admitted that the account books originally produced at the time of assessment were all false and had been prepared for the purpose of income-tax assessment to reduce the total income and thereby evade income-tax. Complaints were filed before the trial court for the three assessment years which were numbered as follows: (1) C.C. No. 231 of 1984 which is the subject-matter of Crl. R.C. No. 922 of 1984 was for offences under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding section 136 of the Income-tax Act declaring the income-tax authority as a civil court for the purpose of section 195, Criminal Procedure Code, with effect from April 1, 1974. Per contra, Thiru A. K. Lakshminarayanan, learned counsel for the respondents, contended: (i) Sections 193 and 196, Indian Penal Code, would not apply unless there was a declaration under section 195(3), Criminal Procedure Code, that the income-tax authority was a court and in the absence of any such declaration at the time when the offences are said to have been committed, sections 193 and 196, Indian Penal Code, would not be attracted. (ii) Amending Act 32 of 1985 could not be given retrospective effect in respect of the specific wordings therein, since it relates to criminal proceedings and the amendment would be an ex post facto legislation. The question that arises for determination is whether the order of the court below quashing the charges under sections 193 and 196 of the Indian Penal Code for the reasons given therein could be sustained ? On behalf of the respondents, before the trial court, it had been urged that as a condition precedent to the applicability of sections 193 and 196, I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, sanction under section 196, Criminal Procedure Code, was necessary. Learned counsel for the respondents relied on the above decision for the legal position that the income-tax authority was not a court under section 195(3), Criminal Procedure Code. The trial court accepted the above legal contention and held that offences under sections 193 and 196, Indian Penal Code, would not apply to case of fabricating false evidence intended to be produced and actually produced before the income-tax authority and quashed the charges relating to them. As rightly contended by learned counsel for the petitioner, the decision of this court in Associated Industries v. First ITO [1982] 134 ITR 565, has no direct bearing on the present case. The question whether sections 193 and 196, Indian Penal Code, would apply to false accounts intended to be produced and actually produced in assessment proceedings before the Income-tax Officer would not depend upon the question as to whether or not the Income-tax Officer has, been declared to be a court under section 195(3), Criminal Procedure Code. This is so because section 136 of the Act, even as it stood prior to the amendment by Act 32 of 1985, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of section 195, Criminal Procedure Code, relates only to a procedural matter and since the amendment neither creates an offence nor enhances any punishment, the amendment is not an ex post facto legislation. Learned counsel for the petitioner placed reliance upon two decisions of the Supreme Court in support of his contention. In State of Mysore v. Fakkrusab [1977] Crl LJ 1005, a charge-sheet filed by the police on October 1, 1970, for an offence under the Mysore Excise Act, 1965, was returned by the Magistrate who refused to take cognizance of the offence on the ground that by the Mysore Ordinance No. 4 of 1970 which came into force on August 7, 1970, section 60, clause (b), of the Mysore Excise Act, 1965, had been amended taking away the power of the police to file a charge-sheet and that, therefore, the court could take cognizance of the offence only on a complaint by an excise official. The order of the Magistrate was unsuccessfully challenged by the State before the Sessions Court and then before the High Court. By the time the matter came up for disposal before the Supreme Court, there had been a further amendment to section 60(b) of the Mysore Excise Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing void and in violation of articles 14 and 20(1) of the Constitution. The High Court upheld the validity of the Act No. 16 of 1967 and remanded the case for fresh trial. The accused went to the Supreme Court. Repelling the argument that making the amendment retrospective was ex post facto legislation in violation of article 20(1) of the Constitution, the Supreme Court observed (page 606 of AIR 1979 SC) : " All that article 20(1) prohibits is ex post facto laws and is designed to prevent a person being punished for an act or omission, which was considered innocent when done. It only prohibits the conviction of person or his being subjected to a penalty under ex post facto laws. " The Supreme Court quoted with approval the following passage from an earlier decision in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1953 SC 394, 398. " .. ...... what is prohibited under article 20 is only conviction or sentence under an ex post facto law and not the trial thereof. Such trial under a procedure different from what obtained at the time of the commission of the offence or by a court different from that which had competence at the time cannot ipso facto be held to be uncon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or the principles of natural justice. Amending Act No. 32 of 1985, therefore, has to be given retrospective effect, as the amendment itself makes it clear. It, therefore, follows that by virtue of section 136 of the Act even as it originally stood prior to the Amending Act No. 32 of 1985, assessment proceedings before the income-tax authority are judicial proceedings. In the instant case, the respondents are said to have fabricated account books for the purpose of producing them before the Income-tax Officer, and had produced the same before the Income-tax Officer. Sections 193 and 196, Indian Penal Code, therefore, are attracted. In view of the fact that the Income-tax Officer has now been declared to be a court under section 195(3), Criminal Procedure Code, with effect from April 1, 1974, the first part of section 193, Indian Penal Code, would apply. The trial court had found that the complaint had been laid by a competent officer as required under section 195, Criminal Procedure Code. I fail to see any legal bar to the complaint launched for offences under sections 193 and 196, Indian Penal Code. The order of the trial court quashing the charge under sections 193 and 196, In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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