TaxTMI 
TaxTMI 
2015 (1) TMI 975
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....record is that initially, main assessee Ashok Kumar Sharma s/o Bhagwan Dass, Railway contractor (for brevity "the main assessee") had engaged Sudesh Sharma, Advocate respondent-accused and supplied him the requisite documents and TDS certificates for the purpose of furnishing his income tax return for the assessment year 1987-88. Consequently, the respondent had filled the income tax return on behalf of main assessee and claimed a refund of Rs. 3395/- on the basis of TDS certificates purported to have been issued by the Senior Divisional Accounts Officer, Northern Railway, New Delhi. The complainant -Income Tax Officer (for short "ITO") claimed that in the wake of verification, the TDS certificates were found not to be genuine and the refund was wrongly claimed by the main assessee. 3. Leveling a variety of allegations and narrating the sequence of events in detail, in all, according to the complainant, the main assessee has wrongly claimed the refund of Rs. 3395/- on the basis of wrong TDS certificates submitted in his income tax return, through respondent-accused Sudesh Kumar, Advocate. In the background of these allegations, the complainant ITO had instituted different compla....
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....be dismissed in this regard. 10. Ex facie the argument of learned counsel that since there was sufficient evidence on record, so, the trial Court has committed a legal mistake to acquit the respondent-accused, by way of impugned judgments of acquittal, is not only devoid of merit but misplaced as well. 11. At the very outset, it may be added here that the jurisdiction of appellate Court in case of acquittal was determined by the Hon'ble Apex Court in a celebrated judgment of Ghurey Lal v. State of U.P. [2008] 10 SCC 450. Having considered the scope of sections 378, 386 Cr.PC and a line of various judgments on the point, it was ruled as under (Para 75):- '75. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal: 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the t....
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....turn along with all the pointed documents on behalf of main assessee. In other words, all the TDS certificates, which were purported to have been issued by the Northern Railway, were supplied by the main assessee to his Advocate. It was the main assessee, who had procured the documents from the concerned authorities and claimed the refund. In case, the main assessee had claimed the refund on the basis of forged TDS certificates, then, the Income Tax Authorities were competent and well within their jurisdiction to reject his claim of refund under the relevant provisions of The Income Tax Act. Thereafter, the aggrieved party had a right to file the statutory appeal in this relevant connection. Be that as it may, therefore, in that eventuality, the respondent-accused, who was an Advocate, had just submitted the income tax return on behalf of main assessee, cannot possibly be and indeed could not be held liable for criminal prosecution for procuring the documents by main assessee in order to attract the penal provisions of indicated offences, as contrary urged on behalf of complainant-ITO. Similarly, the mere fact that he had prepared the income tax return on behalf of assessee, ipso f....
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....espondent-accused, inherent legal lacunae, missing of link evidence, contradictions, improbabilities, totality of the evidence on record and ratio of law on the point, the trial Court has correctly acquitted him, by way of impugned judgment of acquittal, which, in substance, is as under:- "11. The aforesaid discussion make it clear that there is only arguable point as to whether an Advocate may be held liable for submission of wrong/false income tax return showing name of non existing persons in order to derive pecuniary benefit in the shape of refund or it was filed with an intention to cause harm to public servant. I would like to point out fact as per evidence led by complainant. Initially return was submitted to dealing clerk who put up the same to the ITO and on perusal of return along with documents, ITO was/is competent either to accept or reject the claim. If ITO rejected the claim after due enquiry about assessee/claimant then he was required to issue notice to the assessee/claimant as to whether he submitted return or not but no such enquiry was conducted. Complainant did not prove any enquiry relating to non existence of assessee or claimant before this Court. I....
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....te submitted or furnished return before dealing clerk. That the complainant failed to examine dealing clerk who received return without verification or attestation by an advocate. That there is nothing mentioned in the return about endorsement as to whether the contents mentioned in the return are true and correct to the best of my knowledge or an assessee nor it bears the signature of an advocate. That this return is not supported with any power of attorney, so it may easily said it is not proved any authorization by any assessee in whose behalf claim/refund was sought while submission of return. That there is posted one Income Tax Officer and one Inspector who used to dealt with more than 4000-5000 returns in a year, if it was so then before issuing letter to an advocate, ITO should have obtained power of attorney of an advocate relating to alleged assessee/claimant and verification and attestation report regarding contents mentioned in the return to be correct and genuine on behalf of assessee. But no such verification or attestation had been sought on return furnished with the case file. That in case of submission of report, ITO may frame or direct an advocate to....