TaxTMI 
TaxTMI 
2020 (7) TMI 646
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....276C(2) read with 278B(3) of the Income Tax Act, 1961, for the assessment year 2012-2013 before the Judicial Magistrate III, Coimbatore, for wilful default in payment of penalty of Rs. 7,30,48,153/- levied under Section 271(1)(c) of the Income Tax Act, 1961, for concealment of income and for not showing the capital gains to the tune of Rs. 22,97,21,611/- in the income tax return. c) It is alleged in the complaint that the Petitioner/A1 Company/ assessee had sold two landed properties at Kalapatti and at Dharapuram for a total sale consideration of Rs. 1,82,00,000/- and Rs. 90,08,300/- respectively, for which, the total capital gain was worked out to Rs. 1,37,31,142/-. In respect of another sale of windmill, the short term capital gain, arising out of such sale, was worked out to Rs. 21,59,90,469/- and in all, the capital gain was Rs. 22,97,21,611/-. However, the said total capital gain was concealed in the Income Tax returns filed by the Petitioners/ Accused. d) It is further alleged in the complaint that based on the Annual Information Report, assessment proceedings were initiated and that during the assessment proceedings, only at the time when the assessee was confronted wit....
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....the offence under Section 276C(2) read with 278B(3) of the Income Tax Act, 1961 and sentenced the Petitioner/A1 Company to pay a fine of Rs. 10,000/- and directed to the Petitioner/A2 to pay the said fine, in default to undergo three months Simple Imprisonment and sentenced each of the Petitioners/A2 and A3 to undergo three months Rigorous Imprisonment. h) In the appeal in Crl.A.No.535 of 2018 filed against the said conviction and sentence of the Trial Court, the Petitioners/ accused had filed Crl.MP.No.66 of 2019 under Section 391 of Cr.PC, seeking to allow the Petitioner/A2 to examine himself as a witness to substantiate that there is no mens-rea and the Petitioner/A3 is not in charge for day today affairs 5 of Petitioner/A1 Company and to mark the documents mentioned in the list of documents, numbering 45 documents. The Respondent had filed a counter in the said petition, raising objections to grant the reliefs. In and by the impugned order, the said petition was dismissed. Hence, this Criminal Revision Petition has been filed. 3. In this Criminal Revision Petition, the Respondent had filed a counter, reiterating the averments made in the complaint and contending as under:- ....
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....n hand and accordingly, this Criminal Revision Petition is to be dismissed. 4. This court heard the submissions of the learned counsel on either side. 5. The learned counsel for the Petitioners would submit that the Trial Court has failed to taken into consideration the necessity and requirement for marking 7 the documents by way of additional evidence. The Petitioners had been convicted for the offences under Sections 276C(2) and 278B of the Income Tax Act, 1961 and that the allegation against the Petitioners is that they wilfully concealed the short term capital gains and long term capital gains and that the Petitioners, finding that the documents are necessary to bring out facts and to bring out the inference that the Petitioners did not have wilful intention or mens rea to conceal the income, have intended to mark these documents as additional evidence at the time of appeal. 6. The learned counsel for the Petitioners would further submit that Section 391 of Cr.PC provides taking further evidence at the time of trial and since it being an exceptional circumstance, the Petitioners have filed the petition and that the Petition was not filed at a belated stage and that the Petit....
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.... necessity of marking the additional documents, had erroneously dismissed the Petition in an arbitrary manner stating that no valid reasons have been stated and she would further submit that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under Section 391 of Cr.PC since the same avoids de nova trial. 8. In support of her contentions, the learned counsel for the Petitioners would rely on the decisions reported in AIR 2004 SC 346 (Zahira Habibulla H. Sheikh and another Vs. State of Gujarat), AIR 1965 SC 1887 (Rajeswar Prasad Misra Vs. State of WB), 2001 4 SCC 759 (M/s.Rambhau Vs. State of Maharashtra), 2002 1 SCC 655 (Shailendra Kumar Vs. State of Bihar) and 2019 SCC Online SC 72 (Brig.Sukhjeet Sing Vs. State of UP). 9. Per contra, the learned Special Government Pleader for the Respondent, while reiterating the contentions made in the counter, would submit that if it is claim of the Petitioners/ accused that the Petitioner/A3 is not in charge of the day today affairs of the Petitioner/A1 Company, the Petitioner/A3 would have filed a petition for discharge and that by their own documents, the Annual Repo....
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.... they were also available with the Respondent, however they were left out to be marked due to oversight and mistake of their counsel. These documents are essential for arriving at a conclusion that the Petitioners did not have mens rea to suppress the income and that they have not suppressed any capital gains 11 earned by them. These documents are also essential to show that at no point of time, earlier or during the period of offence, the Petitioners have committed the offences under the provisions of the Income Tax Act, 1961, however, they have been left out without being marked. The power to take additional evidence is with an object to appropriately decide the appeal by the Appellate Court to secure the ends of justice and the documents sought to be marked are only to aid to arrive at a just decision and not to change the course or nature of the evidence earlier let in by the Prosecution. She would submit that the Respondent was well aware of these documents and that these documents were also in the custody of the Respondent and that they are not new documents created for the purpose of the appeal. She would submit that wide discretion is conferred on the Appellate Courts and t....
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....mpossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise..............................." 15. This Court again in Rambhau v. State of Maharashtra, (2001) 4 SCC 759 had noted the power under Section 391 Cr.P.C. of the Appellate Court. Following was stated in Paragraph Nos. 1 and 2:- "1. There is available a very wide discretion in the matter of obtaining additional evidence in terms of Section 391 of the Code of Criminal Procedure. A plain look at the statutory provisions (Section 391) would reveal the same........................ 2. A word of caution however, ought to be introduced for ....
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....ces. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise. Commentaries upon the Code are full of cases in which the powers under Section 428 were exercised. We were cited a fair number at the hearing. Some of the decisions suffer from the sin of generalization and some others from that of arguing from analogy. The facts in the cited cases are so different that it would be futile to embark upon their examination. We might have attempted this, if we could see some useful purpose but we see none.....