Income Tax Officer vs Ishwar Tractor Co.

S.C. Malte, J.—Both these matters are being disposed of by this common judgment because both these arise out of the same proceedings before the Magistrate. The ITO, Jind, filed a complaint on 2-4-1987 against the firm Ishwar Tractor Company, Jind, and its partners Smt. Bhanti Devi and Smt. Phulan Wanti and the husbands of these respective partners. The allegation was that they have committed offence under sections 276(c), 277 and 278 of the income tax Act, 1961, and under sections 193, 196 and 120B of the Indian Penal Code, 1807. The allegations were that while filing the return for the assessment year 1976-77, for and on behalf of the firm, a false statement was made and income was suppressed. The husbands of the respective partners were shown as accused on the ground that they were accessories to the commission of offence by the firm and its partners. The papers before me indicate that the Chief Judicial Magistrate recorded the evidence before framing the charge, and on the basis of material thus placed before him, he discharged the respective husbands of the partners of the firm; but proceeded to frame charges against the firm and its two partners. Against that decision matter was taken before the Sessions Court by way of three revisions filed by the respective parties, and these three revisions came to be dismissed by the Sessions Court, by judgment dated 22-2-1992. Being aggrieved by that order/judgment, the income tax Department has preferred Crl. Misc. No. 11243-M of 1992 u/s 382 of the Code of Criminal Procedure, 1898. Criminal Misc. No. 7437-M of 1992 was filed by partner Phulan Wanti. On behalf of the petitioner Phulan Wanti the counsel submitted that she was more than 70 years'' old and as per the circulars issued by the income tax Department, no prosecution against her can be entertained during such advance age. In support of that he sought to produce before this Court an affidavit. In my opinion, an affidavit can hardly be considered as a piece of evidence unless under the Code of Criminal Procedure which governs this case such affidavit can be made acceptable as a piece of evidence. Section 1 of the Indian Evidence Act, 1872, while indicating the extent to which the Indian Evidence Act applies, has clearly stated that the provisions of the Indian Evidence Act would not extend to the affidavit presented to any Court or officer, etc. In other words, the affidavits are accepted as evidence only in those cases where the Code makes specific provision that such affidavit shall be considered as evidence. Such provisions are found in section 295 of the Code of Criminal Procedure, 1898 which pertains to the proof of a conduct of a public servant, and section 296 of the Code of Criminal Procedure which pertains to the acceptance of affidavit in proof of evidence of formal character. The proof of age of an accused cannot be said to be evidence of a formal nature, particularly when on it depends the fate of the prosecution. If Smt. Phulan Wanti claims that she is entitled to be discharged on the ground of advance age and in view of certain circulars from the income tax Department, her remedy is to place before the trial Court sufficient material and evidence to show that she was thus entitled to the benefit of certain exemptions from prosecution.

The counsel for Smt. Phulan Wanti next took me to the aspect that the return of the income tax in question had not been signed by Smt. Phulan Wanti. On that premise he argued that she was not liable. Obviously, that is also a question to be assessed by the Chief Judicial Magistrate before whom the case is pending. The Chief Judicial Magistrate, after considering the material before him, has decided to proceed against these two partners and the firm. At the stage of framing the charge the question before the Court would be whether there is enough material that would lead to the conviction of the accused if it remains unrebutted. The question as to the extent of responsibility of partner Phulan Wanti thus depends on the assessment of the factual position, and that need not be gone into by this Court while exercising powers u/s 482 of the Code of Criminal Procedure.

The other matter No. 11243-M of 1992, was filed by the income tax Department. The contention was that the respective husbands of these two partners used to attend the proceedings before the income tax Department, and thereby their complicity to the commission of the offence was established. The trial Court found that there is no convincing evidence that would lead to the conclusion that the husbands of these two partners had also conspired or were accessories to the commission of offence.'' When the matter was taken before the Sessions Court by way of revision, he has also observed that there was absolutely no material to show that the husbands of these partners respectively had abetted commission of offence. He has further observed that mere fact that they had attended the proceedings before the ITO by itself would not be enough to raise an inference that they had abetted the filing of the false return. I find no good reason to disagree with that reasoning.

Moreover, both these positions, as such, deserve to be dismissed on the simple ground that these petitions u/s 482 are against the decision by the Sessions Court in revision, and amount to second revision under the guise of petition u/s 482. For the reasons stated above, both these petitions stand dismissed. The Chief Judicial Magistrate, Jind, before whom the case is presently pending shall conclude the case within three months from the date of receipt of a copy of this order. The petitioners would be at liberty to lead such evidence before the trial Court which they would think necessary to seek any relief from the prosecution. The parties are directed to appear before the trial Court, i. e., Chief Judicial Magistrate, Jind, on 19-7-1996.