OM PRAKASH SARAF Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) Shri P.K. Banerjee, Income-Tax Officer (ITO), has filed a complaint under Sections 277/278 of the Income-Tax Act, 1961 (hereinafter referred to as 'the Act') as well as under Sections 193/196 of the Indian Penal Code (for short, 'IPC') against as many as nine persons. Accused No.1 is M/s. Radhey Sham Om Prakash, which is a partnership firm (hereinafter referred to as 'the firm'), and accused Nos. 2 to 8 are the partners of accused No.1. Accused No.9 Shri R.K. Gupta is an Advocate who represented the firm. The gravamen of the charge is the false averment made by the accused persons to the effect that they had filed the income-tax return in respect of the assessment year 1981-82 on 6.7.1981, whereas no such return was allegedly filed and the return was filed only on 24.3.1983 in relation to the firm for the assessment year 1981-82. The factum of this alleged false statement surfaced in the following circumstances, as per the averments made in the complaint.

(2.) On 24.3.1983, duly signed and verified income-tax return in respect of the firm was filed by the accused No.5 Smt. Subhadhra Rajgaria showing taxable income at Rs.2,14,900/-. This return was filed without any indication as to whether it was a revised return or original return, though the accused was required to indicate this on the first page of the return. Against the relevant column for this purpose a line was drawn, which indicates 'NIL'. Assessment proceedings were conducted on the basis of this return on 24.3.1983 and taxable income was assessed at Rs.2,33,086/-. The firm was also directed to pay interest under Section 139(8) and Section 217 of the Act. The interest under Section 139(8) of the Act was for filing of return belatedly. Against this order the firm preferred an appeal before the Commissioner of Income-Tax (Appeals) and took the ground that the firm had already filed its return of income on 6.7.1981 vide receipt No. 6934. It is this return which was later revised on 24.9.1983 and, therefore, the return filed on 24.9.1983 was only a 'revised return' and was not a 'fresh return' filed for the first time for the assessment year 1981-82. On this basis it was submitted that since the original return was filed on 6.7.1981, it was delayed only by six days and no interest was chargeable under Section 217 or under Section 139(8) of the Act. On this plea of the firm, the CIT (Appeals) directed the ITO to hear the firm before charging interest under the aforesaid provisions and remanded the case back to the ITO vide his orders dated 4.5.1985. The ITO, in these circumstances, served notice upon the firm and asked the firm to produce a photocopy of the receipt regarding the filing of the original return on 6.7.1981. Inspite of several opportunities given to the firm and other accused persons, they failed to produce any evidence for filing the return on 6.7.1981. The ITO also examined the register of Range III-B for 6.7.1981, the date on which the purported return was filed vide receipt No. 6934. However, he found that no such receipt number was issued on that date for the return. It is on the basis of these facts that the ITO maintains that a false claim for omission from the payment of interest was preferred by alleging that the return was originally filed on 6.7.1981, whereas it could not be proved that any such return was filed.

(3.) The complaint was entertained by the learned MM and taking cognizance, the summons were issued to the accused persons vide order dated 9.4.1984. On receiving these summons, accused No.9 Mr. R.K. Gupta, before recording of the pre-charge evidence, filed an application for his discharge. Thereafter, the petitioner herein, namely accused No.3, also filed an application for his discharge on 22.5.1987. It is not known as to why these applications kept pending for almost 15 years. In the meantime, pre-charge evidence commenced and statement of PW-1 Mr.P.K. Banerjee (ITO) was recorded on 24.4.1989, 8.1.1990 and 5.8.1991. What happened between the period 1991 and 2001 is not known as no proceedings in that behalf are either filed or even stated in the petition. However, application for discharge preferred by the petitioner was considered and dismissed by the learned ACMM on 17.3.2001. Application of accused No.9 was also dismissed on 17.3.2001. Accused No.9 then preferred revision petition against dismissal of his application for discharge. This revision petition was allowed by the learned ASJ vide order dated 4.3.2002 discharging the accused No.9 from the case. Thereafter, vide order dated 2.6.2003 charges were framed against other accused persons. However, it needs to be mentioned that the accused No.8 was dropped in the year 1996 due to his demise.