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TMI Blog2024 (12) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... e same refund. This Court is of the considered view that under the aforesaid circumstances, it cannot be said that the prosecution has proved the foundational facts of abetment of Munilal Devi by the petitioner. While dealing with the plea of non-examination of Munilal Devi, the learned trial court observed that so far as non-examination of assessee namely, Munilal Devi is concerned, it does not affect credibility of her reply as contained in Ext.6. This Court is of the considered view that such a finding is perverse in as much as the credibility of reply of Munilal Devi could be tested only upon her examination and cross-examination. The finding of the learned trial court that the petitioner ought to have taken steps for examination of Munilal Devi is also perverse as it was for the prosecution to establish the foundational facts on the basis of which the petitioner was to be prosecuted. This Court is of the considered view that the foundational fact to bring home the charge against the petitioner for abetting filing of false return by Munilal Devi was not proved by the prosecution. Accordingly, presumption in terms of Section 278E regarding presumption of mens rea does not come i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5000/- and in case of default, further sentenced to undergo rigorous imprisonment for one month. Argument of the petitioner 3. The learned counsel for the petitioner submits that the judgments passed by the courts are perverse and they called for interference. He submits that as per the allegation, the petitioner was said to have abetted one Munilal Devi to file false return for the assessment year 2003-04 and claim refund of Rs. 53,760/- by disclosing housing loan and by filing form 16A allegedly issued by LIC, Chirkunda Branch through TDS certificate. All the documents relating to refund of income tax filed by Munilal Devi were found to be forged, but the petitioner has been convicted as an abettor of the offence committed by Munilal Devi. 4. The learned counsel submits that the conviction of the petitioner has been made solely on account of the reason that Munilal Devi had disclosed to the Income Tax Department in her show cause reply that it is the petitioner who had abetted her to file false return. The learned counsel submits that another circumstance which has been used against the petitioner is that the petitioner did not respond to the show cause notice (Exhibit-7). 5. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that she had handed over the return duly signed by her to the petitioner. She also stated in the show cause reply that the information furnished with the return were fabricated and managed by the petitioner. She also stated in the show cause reply that she is an illiterate lady. The petitioner was issued show cause in this connection but he did not file any reply. 10. On the basis of the complaint filed, the complainant had examined 2 witnesses before the courts and the documents mentioned below were exhibited. The exhibited documents included a certified copy of the judgment dated 29.05.2014 in Criminal Appeal No. 49 of 2014 passed by the Learned Sessions Judge, Dhanbad convicting Munilal Devi for the offence under section 277 of the Income Tax Act. The various documents exhibited included the show cause notice dated 17.06.2004 said to have been issued to the petitioner and it was asserted that the petitioner did not respond to the show cause notice. The learned trial court scrutinized the materials on record, including the following documents: Sl.No. Exhibits Description 1. Exhibit-1 Order dated 18.01.2005 sanctioning prosecution of the accused passed by the Commissioner of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reof. This shows that the assessee namely Munilal Devi was abetted by the present accused in filing her false income tax return for the Assessment year 2003-04. So far as non-examination of assessee namely Munilal Devi is concerned, it does not affect credibility of her reply as contained in Ext.6.It could have been done even by the present accused in order to falsify her reply, but nothing as such has been done by or on behalf of the present accused. 13. Thereafter, the learned trial court referred to Section 278 of the Income Tax Act which deals with offence regarding Abetment of false return etc and was of the view that the case of the petitioner falls under the 3rd clause and explanation of section 107 of the Indian Penal Code and ultimately held as under after quoting the provision of section 278 of the Income Tax Act. :- 15. As the accused has been charged for the offence u/s 278 of Income Tax Act,1961, it reads as it follows; Section 278- Abetment of false return etc.- If a person abets or induces in any manner another person to make and deliver an account or a statement or declaration relating to any income (or any fringe benefit) chargeable to tax which is false and which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission advanced on behalf of the present accused that existence of mens rea is a sine qua non for prosecution of the accused in the instant matter, is hereby discarded. The same finds force in a judgment reported in ( 2014) 1 BBCJ (S.C.) 222 and 2015 CRI. L.J.S.C. 4767 also. 14. The appellate court upheld the conviction of the petitioner after considering the materials on record and held as under: - 11. In this way from the oral testimonies of both the prosecution witnesses, I find that they have simply brought all the relevant documents on the basis of which this case has been lodged against the accused/appellant and the case in hand depends mainly upon these documentary evidences as the appellant has been booked for abetment of filing false return by the assessee Munilal Devi for the assessment year 2003-04 which he knew to be false. In this context the prosecutrix Income Tax Department has filed the return of said Munilal Devi of the year 2003-04 as Exhibit 3 through which she has made a claim of Rs. 53,760/as refund on different grounds of her working as LIC agent and proceeds under home loan which on verification by the Bank as well LIC of India found to be false in support o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceiving the show cause notice from the income tax department nor even furnished any defence at the time of trial. As the instant nature of the case involving economic offences primarily depend upon documents, the guilt of the appellant is found to be well proved . 15. This Court finds that arising out of filing of return for the assessment year 2003-04 of the assessee namely Munilal Devi, two complaint cases were instituted by the Income Tax Department. The allegation was that the assessee Munilal Devi had filed false return claiming refund of income tax based on forged and fabricated documents. One against Munilal Devi bearing C.O. Case No. 31 of 2004 wherein she was convicted vide judgment of conviction and order of sentence dated 27.03.2014 for offence under Section 277 of the Income Tax Act and her conviction was confirmed vide judgment dated 29.05.2014 passed in Criminal Appeal No. 49 of 2014 (Exhibit 2). The other case was instituted against the present petitioner for abetment in filing false return by Munilal Devi under Section 278 of the Income Tax Act allegedly abetting Munilal Devi to commit offence under Section 277 of the Income Tax Act. 16. This Court finds that before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilal Devi claiming innocence has been the basis to convict the petitioner and the same reply has been found to be not acceptable while convicting her in another complaint against which appeal has been dismissed vide exhibit-2. Non-examination of Munilal Devi has a serious bearing in the case. The argument of the opposite party, Income Tax Department, that Munilal Devi could not have been examined as she was a co-accused in connection with the same transaction is not acceptable as Munilal Devi was not to depose against herself, but was to depose in support of her stand taken in her show cause reply and she was not a co-accused in the same complaint case and was already convicted in a different complaint case in connection with the same refund. This Court is of the considered view that under the aforesaid circumstances, it cannot be said that the prosecution has proved the foundational facts of abetment of Munilal Devi by the petitioner. While dealing with the plea of non-examination of Munilal Devi, the learned trial court observed that so far as non-examination of assessee namely, Munilal Devi is concerned, it does not affect credibility of her reply as contained in Ext.6. This Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Further the witnesses, namely, Satish Kumar (PW 1), J.K. Sahni (PW 3) and Satish Luthra (PW 4) have not proved the signatures of Hem Raj. But this, in our opinion, would not be sufficient to throw out the case of the prosecution. The prosecution undoubtedly is to prove its case beyond all reasonable doubt to bring home the charge. The evidence for that purpose could be admission of the accused also. Here in the present case, the prosecution had led evidence to prove that the revised return was filed by the firm under the name of accused Hem Raj and on that basis assessment was made by the assessing authority. There is further evidence to show that aggrieved by the order of the assessing authority, an appeal was preferred before the appellate authority under the signature of the accused Hem Raj, which was dismissed and the penalty was paid. At no point of time accused Hem Raj made any objection that the return did not bear his signature and was not filed by him. 11. It is trite that admission is best evidence against the maker and it can be inferred from the conduct of the party. Admission implied by conduct is strong evidence against the maker but he is at liberty to prove that s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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