ALKESH SUBODHCHANDRA SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These Common Orders shall govern the disposal of these three Criminal Revision Applications presenting common questions of law and facts.

(2.) The Questions of Law in the background of Facts, indisputed and accepted are :- (1) When the money/or the value of the valuable articles, found dunning search operations during a year, has been accepted as the deemed income of the assessee for such financial year by the Income-Tax Department and also as wealth on the basis of the Returns to be filed by the assessee - can there be a charge of a wilful attempt to evade Income-Tax and also the Wealth-Tax for the said year ? (2) Whether the Orders of the City Sessions Court in Revisional Jurisdiction, quashing the Magisterial Orders discharging the accused, and directing the framing of the charges, can be said to be Interlocutory Orders, not amenable to Revisional Jurisdiction of this Court under Sec. 397(2) of the Code of Criminal Procedure, 1973 ? (3) Whether, in the facts and circumstances of the cases, the assesseeaccused persons should have been put on trial for wilful attempt to evade Income-Tax and Wealth-Tax ? To these questions, the answers in my view need to be in Negative.

(3.) Criminal Revision Application No. 130 of 1989 : The Income-Tax Department had carried out the search operations at the residential premises of the accused Alkesh Shah on 24-1-1984 exercising their powers under Sec. 132 of the Income-Tax Act, 1961. During the search operations a cash amount of Rs. 70,488.00 was recovered and/or found. Out of this, an amount of Rs. 65,OCO.00 was treated as an amount of which the nature and source of acquisition were not explained. It appears that the necessary return for the assessment year 1984-85 came to be submitted by the accused-assessee before the requisite date. It is not in dispute that the returned income, as shown by the assessee in the return, has been accepted and that the tax thereon has also been assessed. It is also not in dispute that no penalty proceedings against the assessee-accused were taken out, either for the concealment of the income or for showing incorrect particulars in the return. It is indeed true that some penalty proceedings were initiated against the accused-assessee on the ground that, there was a delay for the payment of the instalment of the advance tax and that the correct particulars in respect of the advance tax were not given. But again, later on these proceedings have been dropped. The factual and legal position, therefore, identifiable from this set of facts, is that the amount so recovered during the search operations was shown by the assessee-accused as his income in his return and the same has been accepted by the Income-Tax authorities and the assessment orders have been made. Any how it appears that, later on Criminal Cases Nos. 185 and 236 of 1986 came to be instituted on the basis of two complaints to be filed by the Competent officials. The said complaints related to the offence punishable under Sec. 276-C of the Income-Tax Act, 1961 and for the offence punishable under Sec. 35-A (1) of the Wealth-Tax Act, 1957. The evidence of the complainant was recorded and all the material on which the prosecution wanted to place reliance was made available to the learned Addl. Chief Metropolitan Magistrate. After that exercise was done, there was a prayer coming from the assessee-accused that looking to the said material, he requires to be discharged from the proceedings. This prayer appears to have been accepted by the learned Metropolitan Magistrate on the ground that, he could see no reasonable ground to believe that the accused had committed the offences as alleged by the Department. The learned Metropolitan Magistrate, was also of the opinion that there was no sufficient material which would justify the framing of the charges against the assessee-accused. This view was taken and expressed by the learned Addl, Metropolitan Magistrate by his orders dated 16/06/1985. Being aggrieved and dissatisfied with the above said orders, the Department had preferred the Criminal Revision Application No. 200 of 1985 before the City Sessions Court, Ahmedabad. The prayer of the Department was that the orders of discharge pronounced by the Court below were not in accordance with law and that, therefore, the framing of the charge was necessary regard being had to the factual and legal position. This prayer was countenanced by the learned Addl. City Sessions Judge vide his orders dated 13-2-1989. After allowing the Criminal revision application and after setting aside the orders of the Court below, the learned Addl. City Sessions Judge has ordered for framing of the charge. These orders dated 13-2-1989 are in challenge in the Criminal Revision Application No. 130 of 1989.