TaxTMI 
TaxTMI 
TaxTMI 
2017 (10) TMI 143
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....om 2006 onwards; He had shown immovable property at Cochin in returns for the year 2008 and the same was disclosed in his income tax returns, but in July 2011 the 1st accused/the assessing officer had issued a notice that his income tax declared for the assessment of the year 2008-2009 has escaped the assessment within the meaning of Section 147 of the Income Tax Act and it was proposed to reassess the income declared by him. He was informed that the capital gain to an extent of 3,28,65,711/- stood in his name. A similar notice was received by him in respect of the assessment years 2009-2010. In the last week of August 2012 on the direction of the 1st accused, he met him in his office at Bangalore; The 1st accused informed him that there are lot of anomalies in his returns and the tax would come around Rs. 80 lakhs and if the complainant pays Rs. 20 lakhs as bribe, case will be closed by imposing tax on Rs. 30 lakhs, for which the complainant was not agreeable. The 1st accused warned that he will impose heavy tax of Rs. 1 crore. On 1.9.2012 and 6.9.2012 he received call over his mobile phone from the 1st accused demanding bribe and was directed to hand over the same to him at Banga....
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....s that the petitioner is not a public servant and does not fall within the purview of sections 7 or 8 or within the purview of section 13 of the Prevention of Corruption Act. Neither Section 7 nor Section 8 contemplate gratification as a consideration for any official act. The assessment order is passed on 6.9.2012. Complaint is filed on 7.9.2012 and the trap was held on 8.9.2012. Hence, the allegation that the 1st accused demanded bribe on 7.9.2012 is false. Once an order is passed, the Assessing Authority concerned becomes "functus officio" as per the judgment of this court reported in 2013(6) KLJ 419 in the case of Smt.K.Chandrika Vs. State By CBI. No body complained that the assessment order is illegal nor the reopening of the assessment was bad in law. In the absence of any material to the effect that accused 1 and 2 had agreed to hatch a criminal conspiracy, charge under section 120-B was untenable. 5. As per the judgment of this court reported in 2013(6) KLJ 419 referred above, mere finding of the trap money on the table of the accused cannot be acceptance of bribe. 6. Learned counsel further placing reliance on the decisions reported in the case of Keshub Mahindra Vs. Mad....
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.... It is the case of the prosecution that for imposing the tax liability for Rs. 30 lakhs, the 1st accused had demanded bribe of Rs. 20 lakhs. The colleague of this petitioner had stated to the effect that on 7.9.2012 she was instructed by A-2 that Mr. A.K.Halim/complainant will come around 6 p.m. to collect the assessment order and she was instructed to collect Rs. 20 lakhs from him to give the assessment order. The complainant went to the chamber. On the instruction of this petitioner, she had contacted the complainant over phone on 8.9.2012 and called upon him to come to the office of A- 2 by 12 noon and she also informed that A-1 will be available in the office of A2. The above statement of the witness supports the case of the prosecution. On a detailed analysis of the prosecution papers, learned Special Judge has disagreed with the contention of this petitioner and has opined that prima facie case is disclosed to suspect that this petitioner has committed the offence under Section 120-B of IPC and Section 8 of the P.C. Act. It is a well reasoned order and the authorities relied by the learned counsel for the petitioner pertains to final judgment passed after trial. At this stag....
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.... the entrustment mahazar are seized. 12. Petitioner contends that the complainant had placed the trap money on the table towards payment of tax and he had used his hands to push back the trap money refusing to accept the same. Learned Special Judge records that at the stage of framing the charge, such contentions by him in his written argument was not found in the explanation given by him before the Investigating Officer. The statements of the complainant witnesses and the explanation of the accused is incorporated in the recovery mahazar. Learned Special Judge observes that the averments made in the entrustment mahazar that accused No.2 asked and received the bribe amount from the complainant on behalf of A-1 cannot be brushed aside. The petitioner's finger test has shown presence of phenolphthalein. Whether this phenolphthalein was due to pushing away of the tainted notes or due to counting the same by using his fingers being a question of fact can only be answered only after trial. 13. The third fold of argument that the accused No.2 is not a public servant and is beyond the contemplation of the statute. The words occurring at Section 8 of the Act "Whoever accepts or obtains, ....