9911796707
TMI Blog2021 (12) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... eing I.A. No.7123 of 2019 challenging the framing of charge against the petitioner by the learned court below vide order dated 26.04.2019. I.A. No 7213 of 2019 was allowed by a coordinate bench of this Court vide order dated 01.08.2019. The charge has been framed for the offence punishable under Section 120(B) of Indian Penal Code read with Sections 7, 12 and 13 (2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and also under Section 15 of the Prevention of Corruption Act, 1988 read with Section 511 of the Indian Penal Code. 5. This Court also finds from the order-sheet of the present case that while allowing the aforesaid I.A. No.7123 of 2019 and directing it to form part of the main application of the present case. It is important to note that it has been recorded in order dated 26.06.2019, that one witness was already examined and accordingly the trial has commenced. 6. Arguments of the petitioner a. Materials on record as have been placed by CBI and supplied to the petitioner as Police Papers, do not in any manner disclose any link /attachment / nexus / connection either directly, indirectly or in any circumstantial manner that the transfer of PAN from Kolkat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h not admitting, the Revisional Authority can be said to have committed an error of jurisdiction upon misconstruction of the CBDT Circular dated 26.07.1983. The Department never questioned the final order passed by Shri Tapas Dutta (co-accused) in the revisions filed by Bhawani Construction and Bhawani Alumina before a higher forum and having allowed it to attain finality, no one including the CBI can be permitted to question the legality and propriety of the said orders. Moreover, in a criminal trial the question of correctness of the orders passed by Sri Tapas Dutta cannot be adjudicated. Even otherwise from bare perusal of the orders passed by Sri Tapas Dutra, it would transpire that the said orders do not suffer from any kind of perversity. No prejudice can be said to have been caused to the Income Tax Department by passing of the said orders. Likewise, no benefit was conferred on the petitioner by the said orders. The assumption of the CBI and also the Learned Court below that the demands against the petitioner's companies were reduced to NIL is contrary to the materials on record. e. No material has been brought on record which would indicate that the petitioner had pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment orders set aside, all the above acts do not constitute an illegal act because the same were within the legal framework provided by the Income Tax Act. Thus, in that view of the matter also, the purported agreement between the petitioner and the other co-accused, which is being inferred by the CBI as well as the Learned Court below without any material, cannot constitute an offence of criminal conspiracy. From the facts disclosed in the police papers, it is evident that there is no material far less any admissible evidence to show that this accused had agreed to do or caused to be done, an illegal act or an act which is not legal, by illegal means. In view of the aforesaid factual and legal position, it is submitted that no offence of criminal conspiracy can be said to be made out, as against the present accused. i. In connection with the issue whether a person, who is not a public servant can be charged and tried for an offence under Section 120(B) of Indian Penal Code read with Section 13(2) read with Section 13(1)(d) of the PC Act, it is submitted that from the scheme of the PC Act, 1988, it appears that the legislature never intended that a person can be so charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Corruption Act. n. In the instant case, the learned Court below has not at all considered the materials which are in favour of the petitioner, such as the note prepared by Pradeep Kumar Mondal which shows that even in his opinion, the assessment order appeared to have been passed in a hurried manner. Similarly, the ultimate outcome of the revisional order dated 29.12.2016 and order dated 30.12.2016 clearly show that on technical grounds the assessment orders dated 31.03.2015 and 29.03.2015 respectively have been set aside and the matter remanded with certain observations. o. Interestingly, the Court has framed charge under one head without setting out the contents of charge as required under Section 211 of Cr.P.C. This approach of the Trial Court is wholly illegal and without jurisdiction. The Court has also framed charge under Section 15 of the Prevention of Corruption Act read with Section 511 of Indian Penal Code, which is unfathomable. A private person by no stretch of imagination can be accused of attempting to attempt an offence of criminal misconduct by a public servant. This reflects total non-application of mind by the learned court below. p. The manner in which ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a well-reasoned order refusing to discharge the petitioner and has rightly framed charge against the petitioner. He submits that the points argued by the petitioner are devoid of any merits and it is the petitioner and other such companies whose PAN were illegally transferred as a result of evil design and conspiracy by giving fake office addresses within the jurisdiction of the prime accused Tapas Kumar Dutta, the then Principal Chief Commissioner of Income Tax at Hazaribagh and Ranchi and thereafter assessment orders were set-aside by the said prime accused Tapas Kumar Dutta , resulting in huge loss of revenue as the demand arising out of orders of assessment passed under Kolkata Jurisdiction have been set-aside . The learned counsel has referred to the counter affidavit to submits that summary of the entire case has been given and the case relates to deep rooted conspiracy. He also submits that sanction for prosecution has already been obtained against Tapas Kumar Dutta, the then principal chief commissioner of income tax at Hazaribagh and Ranchi vide sanction order dated 06.11.2017 and the trial has already commenced. The points raised by the petitioner are matters of trial. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public servant i.e. Sri Tapas Dutta, the prosecution cannot at this stage question the correctness of the said order and the order passed by the quasi-judicial authority is not open to scrutiny in any proceeding far less a proceeding which is not even collateral in nature. The initiation of this criminal case or even at the conclusion of the trial, the legality and propriety of the revisional orders are completely inconsequential. The prosecution, in order to bring home its charge or even at this stage to make out a prima facie case, has to indicate any material which would suggest that the order was obtained pursuant to a demand and acceptance of illegal gratification. E. In view of the aforesaid facts and circumstances, it has been prayed that the order dated 16.03.2019 by which the application for discharge has been rejected and consequently the order dated 26.04.2019 whereby charges were framed against the petitioner, be quashed and set-aside. FINDINGS 9. Before we proceed to examine the facts of the present case, it would be appropriate to consider the ambit and scope of the powers of the Court at the time of considering the discharge application. Section 227 of Cr.P.C. pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal." 11. In the judgement passed by the Hon'ble Supreme Court in the case of "Asim Shariff v. NIA" reported in (2019) 7 SCC 148, it has been held that the words 'not sufficient ground for proceeding against the accused' clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry into the pros and cons. 17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true. 17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused. 18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of J&K v. Sudershan Chakkar). The expression, "the record of the case", used in Section 227 CrPC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police (see State of Orissa v. Debendra Nath Padhi). 28. It is here that again it becomes necessary that we remind ourselves of the contours of the jurisdiction under Section 227 CrPC. The principle established is to take the materials produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Bishwanath Agarwal and Shri Santosh Shah along with other accused persons entered into criminal conspiracy with Shri Tapas Kumar Dutta for obtaining favourable orders under Section 264 of the Income Tax Act., by getting PANs and records of such companies transferred to the jurisdiction of Ranchi and Hazaribagh so that Shri Tapas Kumar Dutta in lieu of illegal gratification may entertain petitions under section 264 of Income Tax Act and pass favourable orders. 15. It is alleged that in pursuance of the conspiracy, Shri Bishwanath Agarwal and Shri Santosh Shah arranged addresses of Ranchi and Hazaribagh for the companies so that the business operation and books of accounts can be shown to have been shifted to these addresses. The allegation is that these companies either did not exist on the given addresses or had taken the premises on rent for only three months and never functioned or had any business/office activity on the so-called changed addresses of Ranchi/Hazaribagh. 16. After arranging the above-mentioned addresses, accused persons got the PANs/Assessment files transferred from respective ITO wards of Kolkata to Ranchi/Hazaribagh by filing applications through Directors o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment orders. 18. The learned counsel has also submitted that arising out of the conspiracy, Shri Bishwanath Agarwal on demand of Shri Tapas Kumar Dutta booked certain flats in the name of M/s Jharna Liquor Pvt. Ltd., a company controlled by him as Director and these flats were later to be transferred in the name of wife of Shri Tapas Kumar Dutta by transferring shares of one holding company of M/s. Jharna Liquor Pvt. Ltd. It has also been pointed out that on 07.07.2017, Shri Tapas Kumar Dutta and Shri Bishwanath Agarwal visited the office of the Mani Group and obtained keys of the above referred flat vide acknowledgement dated 07.07.2017 and soon after, while obtaining the keys, Shri Vishwanath Agarwal handed over the same to Shri Tapas Kumar Dutta. The acknowledgement dated 07.07.2017 was recovered from the house of Shri Tapas Kumar Dutta on 12.07.2017. Further Shri Bishwanath Agarwal made payment of Rs. 4.10 crores for the aforesaid flats from the illegal gratification obtained by him in collusion with Shri Santosh Shah on behalf of Shri Tapas Kumar Dutta, in lieu of the favourable orders under Section 264 of the Income Tax Act, in the matters of PAN of the companies of the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused persons and in order to get rid of the huge tax, filed application dated 08.02.2016 (D-15) in case of M/s Bhawani Construction Pvt. Ltd. and application dated 08.02.2016 (D-13) in case of M/s Bhawani Alumina Products Pvt. Ltd. requesting Pr. CIT, Kolkata to transfer their PANs to Hazaribagh under jurisdiction of accused Tapas Kumar Dutta. In the applications it has been mentioned that the assessee companies had shifted their business and operation/books of account to new office at 186, Lepo Road, Bowden Bazar, Hazaribagh, Jharkhand. It is pertinent to mention here that both the documents filed for transfer of PAN from West Bengal to Jharkhand have been signed by the Petitioner, which is enough to prove that the Petitioner had entered in criminal conspiracy for his benefit. Consequently, vide order dated 22.03.2016 (D-14), under section 127(2) of the IT Act the PANs of the assessee companies were transferred from Kolkata to Hazaribagh. 35. That, in furtherance of the criminal conspiracy accused petitioner as Director of M/s Bhawani Constructions Pvt. Ltd. and M/s Bhawani Alumina Products Pvt. Ltd. filed revision petitions dated 31.03.2016 (D-14 and D-12) u/s 264 of the IT A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed the appeal filed by the accused petitioner and found the assessment order of AO Kolkata in order. Thus, the assessment order passed by the AO Kolkata is found justified by the Commissioner IT Kolkata and in spite of that accused Tapas Kumar Dutta passed favourable order u/s 264 of the IT Act causing undue benefit to the accused petitioner. 38. That, during investigation Shri Nageshwar Ram (PW-28) has stated that M/s Bhawani Constructions Pvt. Ltd. and M/s Bhawani Alumina Products Pvt. Ltd. never existed at their given address 186, Lepo Road, Bowden Bazar, Hazaribagh. 39. That, it is further stated that Shri Aditya Vikram Lakhotia (PW-23) brother of accused petitioner in his statement u/s 161 Cr. P.C. has stated that the day to day work of M/s Bhawani Constructions Pvt. Ltd. and M/s Bhawani Alumina Products Pvt. Ltd. was looked after by accused Anup Kumar Lakhotia. As per his statement both these companies were based in Kolkata and their business/books of accounts were never shifted to Hazaribagh. Similarly, another witness Shri Manik Chand (PW-27) owner of Shanti Complex, 186, Lepo Road, Bowden Bazar, Hazaribagh in his statement u/s 161 Cr. P.C has stated that he had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Limited had received money through various entities which was paid towards the aforesaid share application on the same day or the subsequent day. 22. Similar was the situation with the other company namely M/s Bhawani Alumina Products Private Ltd. wherein share application money to the tune of Rs. 2,06,50,000/- was received from Samsung Estates Private Limited and the assessee was asked to produce the director/principal officer of the investing company, but the assessee failed to do so and the assessee submitted details of 18 shareholders, but they were not found available at the address and they were not filing their ITRs and consequently, the said credit amounting to Rs. 2,06,50,000/- in the form of share capital was found to be bogus and added back under Section 68 of the Income Tax Act. 23. Said Manu Chaurasia stated in his statement that as per the provisions of Section 264(4) of the Income Tax Act, simultaneous proceedings before CIT Appeal and before the administrative CIT under Section 264 of the Income Tax Act cannot be proceeded. He has also stated that generally in case of PAN transfer, the assessee files the application before the principal commissioner of Income Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said document showed that the assessee was maintaining books of account at 186 Lepo road, Bowden Bazar, Hazaribagh. The assessee filed petition under Section 264 of Income Tax Act before PCIT Hazaribagh. The ITO, Hazaribagh vide letter dated 06.05.2016 directed ITO ward - 2 Hazaribagh to submit a report on the assessee's revision petition and vide order dated 29.04.2016, the assessment record of the company was transferred to Hazaribagh. The appeal under Section 143(3) filed by the assessee against the assessment order dated 31.03.2015 passed by Manu Chaurasia was decided by CIT Appeal, Kolkata and the appellant could not prove the genuineness of the credit entries and had not demonstrated anything to prove otherwise in the appeal proceedings and by filing the withdrawal application, applicant expressed inability to prove the grounds of appeal and therefore, the appeal was dismissed. PCIT, Hazaribag Shri Tapas Kumar Dutta vide order under Section 264 of IT Act dated 29.12.2016 set-aside the assessment order and ordered for re-assessment. Similar was the situation with the other company of the petitioner. 24. Statement of Shri Ram Bilash Meena of the Income Tax Department under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard the case on 21.12.16, attended by Bishal Agarwal, C.A. and in pursuance of the conspiracy, the co-accused Tapas Kumar Dutta abused his official position and ignored the observations made by DCIT Kolkata and passed order dt. 29.12.16 setting aside the assessment order dt. 31.3.15 saving the assessee from paying the income tax imposed by Assessing Officer, Kolkata. Further this petitioner being a controller and director of M/s Bhawani Alumina Products Pvt. Ltd., filed Income Tax Return dt. 28.9.12 for assessment year 2012-13 showing total income of Rs. 54,22,660/-. The return was selected for scrutiny under CASS and DCIT Circle 13(1) during the scrutiny found that verification of the share capital introduced during the previous year could not be made due to complete non compliance of the summons on the part of assessee. The creditworthiness and genuineness of the transactions could not be established by the assessee petitioner and therefore, the proceeding was concluded and a demand of Rs. 1,02,32,420/- vide demand notice dt. 29.3.15 was raised. This petitioner in furtherance of said conspiracy with Co-accused Bishwanath Agarwal and Santosh Shah intentionally showed to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith co-accused and it is admitted fact by this petitioner also that after investigation de-novo reassessment of his tax liability of the aforesaid companies were increased and same were deposited which is the subsequent development after submission of charge-sheet in this case which also supports the prosecution story." 27. The learned court below found that exercise of power u/s 264 of I.T. Act as well as transfer of PAN were used with malafide and ill intention and thus there is sufficient material against this accused petitioner for the purpose of framing of charge for the alleged offence. 28. Thus, the materials which been collected during investigation prima-facie reveal that the assessment orders resulting in huge addition of income interalia, against the companies of the petitioner on account of unverifiable investors in the companies through shell companies were passed by the income tax authorities at Kolkata, appeals were also filed, but in absence of stay, orders for attachment of bank accounts were passed. The allegation is that a number of accused persons including the petitioner who is director of the two assessee companies as well as Tapas Kumar Dutta , the Chief Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d any direct or indirect links of the petitioner with the alleged offence. Suffice is to say that there are sufficient incriminating materials and circumstances, collected against the petitioner during investigation, to constitute prima-facie case indicating involvement of the petitioner in the alleged offence. 31. The learned counsel for the petitioner has relied upon following judgements: - a. Central Bureau of Investigation, Hyderabad vs. K. Narayana Rao; (2012) 9 SCC 512 wherein the law relating to conspiracy has been stated as follows: - "24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after occurrence have to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act has already been given by the competent authority. Thus, the judgement relied upon by the petitioner does not help the petitioner at this stage of the case. c. C.K. Jaffer Sharief v. State, (2013) 1 SCC 205 (paras-14, 16, 17 & 18), A. Shivaprakash v. State of Kerala, (2016) 12 SCC 273 to submit that it is equally well settled that a violation or breach of departmental instruction by itself does not constitute an offence of criminal misconduct or conspiracy to commit such an offence, unless there are some materials to show that there was a dishonest intention. This judgement does not help the petitioner in any manner whatsoever as in the present case there is prima-facie sufficient material to show criminal conspiracy with dishonest intention amongst the accused persons including the petitioner which has caused loss to the public exchequer. d. Deepakbhai Jagdishchandra Patel v. Scare of Gujarat & Anr., (2019 SCC Online SC 588), to submit that the Learned Trial Court has committed an error of jurisdiction while passing the impugned order and has acted merely as post office and the impugned order reflects complete non application of mind. It has been held by the Hon'ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
