INCOME TAX OFFICER Vs. BHUPENDRA NARAYAN BHATTACHARYYA DR

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dt. 8th Nov., 1985 passed by the Additional Chief Judicial Magistrate, Kamrup, acquitting the respondent in Case No. 310C of 1973.

(2.) THE appellant (ITO, B Ward, Guwahati) instituted a criminal case No. 310C/73 against the respondent under S. 277 of the IT Act, r/w S. 177 of the IPC. The prosecution story is that the respondent submitted a verified return of the income -tax for the asst. year 1970 -71 corresponding to financial year 1969 -70. The return was signed and verified by the respondent himself. In the said return, the respondent as assessee showed income which is less than his actual income. Not being satisfied with the statement made in the return, the appellant issued notice to the respondent to appear on 9th March, 1971. He was examined under S. 131 of the IT Act. After examination of the respondent and on consideration of the relevant facts, the appellant passed an order under S. 143(3) assessing total income of the respondent as Rs. 43,404 for the said assessment. This income included Rs. 27,560.00 he received as medical attendant for giving treatment to Central Government employees, namely, the employees of postal department, and Rs. 10,000 as the income received from other private practice. Even though the total income of the respondent was Rs. 43,404 the respondent made an incorrect statement just to evade the tax. Accordingly, a complaint was lodged. The Magistrate took cognizance of the offence and issued process. Charges under S. 277 of the IT Act r/w S. 177 of the IPC were framed.

(3.) I have heard Mr. D.K. Talukdar, learned standing counsel for the appellant and Mr. J.M. Choudhury, learned counsel for the respondent. The main submission of Mr. Talukdar is that the return was found to be false in a proceeding under S. 131 of the IT Act, where the respondent was examined and the return was produced before him. The ITO in the present criminal case deposed before the Court that in the said proceeding under S. 131 of the IT Act, the ITO found that the verification made by the respondent in the return filed by him was false and accordingly the respondent is punishable under S. 277 of the IT Act. However, he has not made any submission with regard to the offence under S. 177 of the IPC. Mr. Talukdar also submits that the evidence of the witnesses abundantly shows that the respondent is guilty under S. 277 of the IT Act, inasmuch as, the ingredients of the said section have been fulfilled. Mr. Talukdar mainly relied on the evidence of PW -1 G.N. Hazarike, ITO, 'B' Ward, Guwahati. He submits that it was not proper on the part of the Additional Chief Judicial Magistrate to acquit the respondent from the charges levelled against him in view of the evidence on record. Mr. J.M. Choudhury, on the other hand, submits that none of the ingredients of S. 277 of the IT Act is present to warrant a conviction under the said section. Mr. Choudhury has drawn my attention to the portion of the evidence of PW -1, G.N. Hazarika, where he stated that he did not take any step except filing the complaint case against the respondent and he did not know the respondent. There was no correspondence between him and the respondent. He had no occasion to see the respondent writing. He simply said that the signature in the return (Ext -3) was proved as it was found in the official record. Earlier he had not seen him writing and he had no personal acquaintance with the respondent. Therefore, Mr. Choudhury submits that from the evidence of the witness (PW -1) there can be no conviction under S. 277 of the IT Act, on the ground of filing of a return with false verification. Mr. Choudhury further submits that apart from this, the Essentiality Certificates issued by the respondent also were not proved, inasmuch as, the PW -1 did not know about the said certificates. In his evidence he stated that in Ext -21(1) to 1447(1) the respondent put his signature, as these signatures had been found under the official seals. The witness also stated that he would not have been in a position to prove the signatures unless there were seals under the signatures of the Respondent. Therefore, the Addl. Chief Judicial Magistrate rightly acquitted the respondent.