INCOME TAX OFFICER Vs. ABDUL RAZACK

JUDGEMENT

(1.) THIS revision case is filed against the judgment of the Special Judge for Economic Offences, Hyderabad, in Criminal Miscellaneous Petition No. 2425 of 1987 in Civil Case No. 94 of 1987, dated February 1, 1988, dismissing the complaint filed by the petitioner herein and discharging the respondents-accused Nos. 1 to 3 under section 245(2), Criminal Procedure Code.

(2.) THE facts of the case are that A-1 is the assessee, A-2 is the wife of A-1, and A-3 is their relative. On September 26, 1986, at 11 a.m., a search was conducted in the house of A-1 by the income-tax authorities. In the course of the search, they seized cash of Rs. 1,80,000 and the search completed at 5.30 p.m. At the time of the search, the respondents did not give any explanation. THE respondents filed a representation on October 22, 1986, along with a xerox copy of an agreement of sale dated September 25, 1986, entered into between A-2 and A-3, for the sale of a residential for static that A-3 paid Rs. 1,00,000 to A-2 on September 25, 1986, under the said agreement and the balance amount of Rs. 80,000 was accumulation of A-1's professioner income. As per section 132(5) of the Income-tax Act of (hereinafter referred to as "the Act"), the income-tax authorities have to pass an order within four months from the date of the seizure estimating the liabilities, tax, penalties, etc., and also pass an order retaining the amounts seized. THE matter was posted on January 16, 1987, and summons was issued to A-3; but A-3 did not appear. THEreafter, the order dated January 22, 1987, was passed under section 132(5) of the Act by the Income-tax Officer, 'B' Ward (Circle I), Hyderabad, stating that since the tax/interest/penalty, etc., were payable by the assessee for the seized amount of Rs. 1,80,000, the said amount was retained and no part of it could be released to the assessee and that the order was passed with the previous approval of the Inspecting Assistant Commissioner of Income-tax Range I, Hyderabad. In para 16 of the said order of the Income-tax Officer, it is stated that the officer wanted to see that the original agreement as there were corrections in the xerox copy of the same. It is further stated :"...I am afraid, I cannot take cognizance of the copy signed by the Notary later unless the original is produced before me." However, it is found : "THE xerox copy of the acknowledgment form the Officer of the Inspecting Assistant Commissioner, Acquisition, produced by the assessee, signed by clerk in that office, no doubt, shows that a copy of the agreement was filed on September 26, 1986."

(3.) IN the meanwhile, on the basis of the sanction order dated March 26, 1987 passed by the Commissioner for prosecution of the respondents on the INcome-tax Officer filed a complaint on March 31, 1987, against the respondents herein alleging the offences under sections 174 and 175 of INcome-tax Act and section 193, INdian Penal Code. The court below cognizance of the case against the respondents herein. Thereupon, respondents herein filed Criminal Miscellaneous Petition No. 2425 of 1987. The court below, after hearing both the parties and going into the rules observed that the Commissioner did not apply his mind properly; that he did not give any opportunity to the respondents here in before giving sanction order for prosecution; that the complaint is premature as the respondents herein did not even filed their return for the assessment year 1987-88 and, therefore, discharged the respondents. Against that order, the present revision is filed by the INcome-tax Officer.