MULCHAND BOTHRA Vs. UNION OF INDIA
LAWS(CAL)-1976-2-16
HIGH COURT OF CALCUTTA
Decided on February 11,1976

MULCHAND BOTHRA Appellant
VERSUS
UNION OF INDIA Respondents


Referred Judgements :-

GOJER BROS PRIVATE LIMITED VS. RATAN LAL SINGH [REFERRED TO]


JUDGEMENT

- (1.)THE petitioner in this application under Article 226 of the Constitution is challenging the petition of complaint filed by the Income tax Officer on the 14th March, 1972. The said petition of complaint is annexure 'd' to the petition. The said complaint was filed by one Shri S. K. Bhakta who was income-tax officer, G. Ward, Hundi Circle. The complaint was filed before the Chief Presidency magistrate, Calcutta. The complainant was the Income-tax Officer and the accused was a partner of Messrs Askaran Kissenlal dealers of raw jute and the complaint was in respect of the assessment year 1955-56 in respect of which a notice under section 22 (3)of the Indian Income-tax Act, 1922 was issued calling upon the assessee to file the return of income. The said notice was issued on the 1st July, 1955. On the 1st July, 1955, 5th of September, 1955 and 15th January, 1957 notices were issued by the income-tax officer on the assessee for filing of return under section 22 (3) of the Indian Income-tax Act, 1922. It was stated that the returns of income were filed on 13th june, 1957 and a letter was issued to the assessee. It has been further stated that on the 11th July, 1957 a duly verified return signed by the accused showing a total income of Rs. 90,560/-along with a supporting balance-sheet and profit and loss account was filed before the Income-tax Officer. On the 25th July, 1957 notice under section 22 (4) of the Indian Income-tax Act, 1922 was issued for production of books of account from 2008 to 2011 Ram. Navami years. On 30th July, 1957 the authorised representative of the accused appeared and the books of account for 2011 corresponding to 1955-56 were produced. After inspection and scrutiny of the books of account these were returned with the direction to produce books of account from 2008 to 2011 ram Navami Years all at a time on the 5th August, 1957. On the 14th august, 1957 again the books of account of 2011 Ram Navami year only were produced without the books of account for 2008 to 2010 Ram Navami Year. It has been further alleged that the accused had caused fabrication of false evidence in the books of account by not posting all entries showing purchases and sales and also in the profit and loss account filed with the return intending that such entries appearing in the books of account and the accompanying profit and loss account might be used as evidence in income-tax assessment proceeding. In the premises, it was stated that the accused had rendered himself punishable under section 193 of the Indian Penal Code and further the accused had used or attempted to use fabricated books of account containing false entries produced before the dealing Income-tax Officer knowing the same to be false or fabricated and thereby had rendered himself punishable under section 196 of the Indian penal Code. In the circumstances, it was prayed that cognizance of offences under section 193 and 196 of the Indian penal Code might be taken against the accused person. As mentioned hereinbefore the complainant in the instant case one Shri S. K. Bhakta was the income-tax Officer, G Ward, Hundi circle, Calcutta. The assessment was made on 31st June, 1957 by one Shri P. K. V. Raghavan who was the Income-tax Officer, N. C. E. P. T. , (Dist. I) Calcutta. In the main order of assessment it was stated that a notice under section 28 (3) of the Indian Income Tax Act, 1922 had been issued in view of non-production of the books of account called for under section 22 (4) as well as for concealment of income and furnishing inaccurate particulars thereof. The assessee, thereupon, preferred an appeal before the Appellate Assistant commissioner and the Appellate Assistant Commissioner by his order dated 31st January, 1958 modified the assessment to certain extent and granted certain relief to the assessee. The assessee, thereupon, preferred a further appeal to the tribunal and the matter was disposed of by the tribunal on 11th september, 1971. It may be mentioned that in view of the fact that the tribunal had given certain relief to the assessee, it was for the Income-tax officer now to give to the assessee those reliefs. Under the scheme of the Act the assessment order after disposal of the appeal by the tribunal in a case where the assessment is modified has to go back to the Income-tax officer to give effect to the order of e tribunal. It may also be mentioned as indicated in the order of the Income-tax Officer that proceedings had been taken for imposition of penalty and those proceedings had taken sometime for completion and during the pendency of the said proceeding under act of 1922 it was not possible for the revenue to take proceeding by way of prosecution against the accused. In paragraph 12 of the affidavit-in-opposition filed in answer to the rule nisi in this case the Income-tax Officer concerned has stated that the income-tax district formerly known as N. C. E. P. T. district I have been renamed as Hundi circle and the Income-tax Officer, G ward, Hundi Circle has been vested with the jurisdiction over the said assessee firm.
(2.)IN the case of Balwant Singh v. I. C. Bharupal, I. T. C. , New Delhi, i. T. R. 70 page 89 the Supreme Court held that though proceedings before income-tax Officer for the registration of a firm under section 26a of the Indian Income-tax Act, 1922 were judicial proceedings in a court and section 195 (1) (b) of the Code of Criminal procedure, 1898 would apply, the Income-tax Officer could not be treated as a revenue court and neither section 476 nor section 479a of the Code would be applicable. It was not incumbent upon the Income-tax Officer, according to Supreme Court, to follow the procedure laid down in either of those two sections before he could validly file a complaint for offences under section 193 and 196 of the Indian Penal code when forged documents were produced and false statements were made on oath in proceedings under section 26a of the Act. Similarly, in the case of Gulab Chand Sharma v. H. P. Sharma, Commissioner of Income-tax, Delhi, 95 I. T. R. 117 the Delhi high Court held that making of complaint by income-tax Officer had to satisfy the requirements of section 195 (1) (b) of the Code of Criminal Procedure in respect of complaint under section 193 of the Indian Penal Code and though the income-tax Officer was a court for the purposes of section 195 (1) (b) of the Code of Criminal Procedure he was not a civil, revenue or criminal Court for the purposes of sections 476 and 479 of the Code and it was not necessary for him to comply with those sections. It is clear therefore, that the Income-tax Officer was competent to lodge complaint under section 193 and section 196 of the Indian Penal Code and proceedings before him were judicial proceeding and section 195 (1) (b) of the Code of Criminal Procedure applied though the income-tax Officer was not a revenue, civil or criminal court and as such section 476 or 479a of the Code would be in applicable.
(3.)COUNSEL for the petitioner did not concede this position but in view of the aforesaid decisions was unable to contend otherwise in this application
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