Prosecution u/s 276CC for not filing return-Sentence set aside and Trial Court directed to pass fresh judgment after consideration of additional evidences u/s 391 of CrPC.
ABCAUS Case Law Citation:
ABCAUS 2661 (2018) (12) AC 
Important Case Laws Cited/relied upon:
Sudevanand Vs State through CBI (2012) 3 SCC 387 Govind Chauhan Vs Sriram Sonboir 2014 CriLJ2411
Globe Trotters International Vs Joseph Fernandes MANU/MH/2111/2010
Rambhau and another v. State of Maharashtra MANU/SC/0309/2001: (2001) 4 SCC 759 : (AIR 2001 SC 2120)
Zahira Habibulla H.Sheikh and another v. State of Gujarat and others MANU/SC/0322/2004: (2004) 4 SCC 158: (AIR 2004 SC 3114)
The appellant was convicted by the Trial Court for the offences u/S 276 CC of Income Tax Act and was sentenced to undergo Simple Imprisonment for 6 months alongwith fine.
The appellant preferred an appeal before the Special Judge. The appellant also moved applications u/s 391 Cr.P.C seeking to lead evidence either by the Appellate Court or by the trial court for proving and considering two documents i.e. the assessment order, order of the CIT(A), notices u/s 153A, 142(1) of Income Tax Act (IT Act) and copies of replies given by the appellant on different occasions etc.
It was asserted that delay in filing the income tax return after issuance of notice u/s 153A IT Act was not “wilful and it was due to the voluminous record running into approximately 40000 pages that was seized by the Income Tax Department during the search and seizure conducted and also due to the fact that appellant had to file the revised return of income for the assessment years each of which require scrutinizing the seized record of approximately 40000 pages.
It was contended that due to inadvertence on the part of the earlier counsel and due to certain overlooking, the documents mentioned in the applications u/s 391 could not be filed before the Trial Court for its consideration.
It was urged that the Trial Court could not have arrived at a conclusion to convict the appellant had the appellant produced the said documents It was also explained that injustice shall be caused in case the proposed documents sought to be produced are not allowed to be entertained as the same are relevant for the purpose of appreciating the word ‘willful’ within the meaning of Section 276 CC of IT Act i.e. the offence under which the appellant had been convicted and sentenced by the Trial Court.
It was submitted that it was humanly impossible for the appellant to file income tax return in such a short span of time given the fact that not only he was required to file income tax return for the assessment year of this case but he was also required to file income tax return for other years also and this fact can be established only by filing the documents proposed to be filed.
It was also submitted by the appellant that the orders of the Assessing Officer as well as the orders of the CIT (Appeals) were of utmost importance for the decision of the case as the CIT (Appeals) had reversed the orders of the Assessing Officer by assessing the income of the appellant to be same as that which was filed by the appellant after issuance of notice u/S 153A of IT Act.
It was also submitted that since there was no evasion of income tax as upheld by the CIT (Appeals) and since there were sufficient reasons for not filing the income tax return within the period prescribed in the notice u/s 153A of the IT Act, the appellant did not deserve to be convicted and sentenced and he should get at least a chance to present his case with the support of the documents proposed to be relied upon by the appellant either before the Appellate Court or before the Trial court as the case may be.
On the other hand the Department opposed the applications us/ 391 if CRPC and argued that no questions were put to the witnesses during cross examination with respect to the documents proposed to be produced in evidence and there was no reference of such documents in the statement of the appellant recorded u/S 313 Cr.P.C before the Trial Court.
It was also urged that number of documents filed by the appellant would amount to de novo trial and the appellant should not be allowed to take the court for a ride and bring the documents as per his whims and conveniences.
The Appellate Court opined that the plea of the appellant could not be rejected straightway simply on the premise that since the income tax return was not filed by the appellant within the stipulated time granted to him by virtue of notice u/S 153A of IT Act and that it was filed only after expiry of the considered period granted by the said notice.
The Appellate Court stated that the legality has to be balanced with propriety by the Courts. Though, section 153A IT Act prescribes the punishment for not filing the income tax returns within time after issuance of notice, but the plea of the appellant that he had to surf around 40000 pages recovered by the Income Tax Department during search and seizure before filing of the return in response to Section 153 can not be ignored.
The Appellate Court opined that there was no harm in case the accused /appellant was given a chance for production of the documents for consideration of either by it or by the Trial Court in order to falsify the claim of the Department that there was a ‘willful’ default on the part of the appellant for not filing the return within the period granted vide notice u/s 153A of IT Act.
The Court stated that it is cardinal principle of Indian Criminal Law jurisprudence that justice should not only be done but it should appear to have been done. The Court opined that after considering of the said legal jurisprudential principle that there should not remain any doubt in the mind of the appellant that had he produced the documents proposed to be filed and considered, he would not have been convicted.
The Appellate Court observed that the Hon’ble Supreme Court had categorically laid down that the primary object of Section 391 Cr.P.C is the prevention of guilty man’s escape through some careless or ignorant proceedings before a court or vindication of an innocent person wrongfully accused. It had also been elaborated that when a court through some carelessness or ignorance has omitted to record the circumstances to elucidation of truth, the exercise of powers u/s 391 Cr.P.C is desirable.
Accordingly, the Appellate Court directed that the trial court shall take into consideration the said documents and shall pass fresh judgment. Resultantly, the impugned order on sentence was set aside.
