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TMI Blog1982 (11) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... and deliberately concealed his actual income earned as medical fees from various Central Govt. employees and from private practice to evade tax. In the complaint case the petitioner appeared before the court and pleaded not guilty. It is stated in this petition that against the relevant assessment of 1970-71 made by the ITO, B-Ward, Gauhati, the petitioner preferred an appeal before the AAC, Gauhati, Range-1, who by his order dated November 21, 1974, partly allowed the appeal giving some relief to the petitioner, and on further appeal the Income-tax Appellate Tribunal by its order dated May 5, 1977, has allowed the appeal and has set aside the assessment order holding that the assessee is entitled to an opportunity before an assessment c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement in any verification under that 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 as prescribed under that section. Section 279 of the I.T. Act provides that prosecution has to be at the instance of the Commissioner. Sub-section (1A) of s. 279 provides that person shall not be proceeded against for an offence u/s. 277 in relation to the assessment for an assessment year in respect of which the penalty imposable upon him under cl. (iii) of sub-s. (1) of s. 271 has been reduced or waived by an order u/s. 273A. Section 271 deals with penalty for failure to furnish the returns of total in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may extend to two years, or with fine, or with both." This section deals with giving false information which one knows or has reason to believe to be false. Knowledge of falsity is necessary to constitute an offence under this section (Jagan Nath v. Rex, AIR 1950 Ajmer 19). As was held in P. D. Patel v. Emperor [1933] 1 ITR 363 (Rang), if (p. 368): "...anyone through inadvertence, mistake or misunderstanding may make an inaccurate return of his assessable income, and if, when the error is pointed out, the assessee is willing to pay income-tax upon his real assessable income, normally there will be an end of the matter. But where ...... assessable income is deliberately kept out of the return .......... and so far from being ready and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angachari, ITO [1969] 72 ITR 787 (SC), the argument that in view of s. 26 of the General Clauses Act the appellant could be prosecuted either u/s. 52 of the Indian I.T. Act, 1922 (s. 277 of the 1961 Act) or u/s. 177 of the Penal Code was rejected holding that s. 26 of the General Clauses Act provides that de where an act or omission constitutes an offence under two enactments the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence." The Department itself has found that information was gathered behind the back of the 'petitioner, and that the petitioner was not given a reasonable opportunity to explain them; and it has ordered fresh assessment after g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Code applied and that it was not incumbent on the ITO to follow the procedure laid down in either of those two sections before he could validly file a complaint for offences u/ss. 193 and 196 of the Penal Code where forged documents were produced and false statements were made on oath in a proceeding. Section 196 of the IPC deals with the following : " Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated shall be punished in the same manner as if he gave or fabricated false evidence." On a perusal of the order of the I.T. authorities there arises no doubt that it is incumbent to give the petitioner an opportunity to explain his information. It is a matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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