@JUDGMENTTAG-ORDER
Viney Mittal, J.@mdashThe present revision petition has been filed by the Wealth-tax Officer, Ward-A, Sirsa, challenging the order dated October 12, 1992 passed by the learned Additional Sessions Judge, Sirsa, whereby the order dated November 26, 1990 passed by the Chief Judicial Magistrate, Sirsa has been set aside. The petitioner - Wealth-tax Officer filed a complaint under sections 35A and 35B of the Wealth-tax Act, 1957 regarding the assessment year 1980-81 against the present respondent Om Parkash. It was stated in the complaint that Om Parkash as karta of Hindu Undivided Family was a wealth-tax assessee and was assessed under the provisions of Wealth-tax Act, 1957. It was further stated that on July 17, 1980 Om Parkash had filed a Wealth-tax return of karta of Hindu Undivided Family as well as statement of wealth as on March 31, 1980 for the assessment year 1980-81 and had signed the aforesaid return in token of its correctness. In this return he showed his net wealth in the sum of Rs. 1,28,453 after claiming certain exemptions and deductions. On July 9, 1982 a revised wealth-tax return dated July 1, 1982 was filed. A statement of wealth as on March 31, 1980 declaring his net wealth of Rs. 1,14,483 after claiming exemptions and deductions accompanied the aforesaid revised return.
2. It was further averred by the complainant that a complaint had been received in the department. An enquiry was conducted. A statement of the assessee Om Parkash was recorded on July 13, 1982. In the aforesaid statement he admitted to have advanced a sum of Rs. 10,500 to one Adeshwar Kumar Jain on February 25, 1977 bearing interest @ 12% per annum and also that he had entered into an agreement to purchase shop No. 808 in the name of his wife Smt. Raj Kumari for a sum of Rs. 70,000 with Sh. A.K. Jain, General Attorney of Janeshwar Kumar Jain and for that purpose had paid Rs. 16,000 towards part payment out of the books. The case of the complainant is that the assessee had further admitted that the aforesaid shop was mortgaged with his wife for Rs. 25,000, which amount was paid on November 11, 1975 out of which Rs. 10,000 were paid out of books and Rs. 15,000 from the books.
3. On that basis, the Wealth-tax Officer had found that the assessee had concealed his wealth from the department. It was further stated in the complaint that during the course of assessment proceedings, the Wealth-tax Officer had found that the assessee had not declared a sum of Rs. 10,500 which was the loan advance to Sh. A.K. Jain in the original return whereas the same was declared in the revised return. The Wealth-tax Officer on further enquiry found that assessee had transferred 81 canals 2 marlas of land in the name of his wife Smt. Raj Kumari in the year 1971 through a Civil Court decree dated December 20, 1971. In fact the aforesaid land belonged to Hindu Undivided Family. Smt. Raj Kumari sold the said land and deposited the sale proceeds thereof with M/s. Attam Ram Om Parkash. She purchased land measuring 25 canals 19 marlas on July 27, 1976 for a sum of Rs. 28,600 from the funds which were available with her as aforesaid. On that basis, it was maintained by the complainant that assessee had not shown or declared the aforesaid wealth in his original and revised returns. The Wealth-tax Officer also found that the assessee had shown the value of the land measuring 110 canals 11 marlas at Rs. 1 lakh, though the value of the same was taken at Rs. 10,000 during the assessment proceedings in the year 1979-80.
4. The further case put up by the complainant was that after hearing the assessee, the Wealth-tax Officer had passed an assessment order on June 24, 1983 determining the total wealth of the assessee at Rs. 3,37,980 as against Rs. 1,28,453 disclosed in the original return and Rs. 1,14,483 in the revised return. The Wealth-tax Officer added Rs. 1,942 as interest allowed by the Court on the amount of loan advanced to Sh. A.K. Jain, Rs. 16,000 paid as part payment of Sh. A.K. Jain, for purchase of a shop, Rs. 25,000 paid as mortgage money, Rs. 4,500 on account of jewellery, Rs. 36,576 standing in the names of his minor children in the books of M/s. Attam Ram Om Parkash, Rs. 51,900 towards value of the land standing in the name of Smt. Raj Kumari, which came to her minor children after her death, Rs. 61,000 as difference in the valuation of the land. The penalty proceedings were accordingly initiated against the assessee. It was maintained that since the assessee had concealed this wealth intentionally, so he was liable to be punished under sections 35A and 35B of the Wealth-tax Act, 1957.
5. Upon the filing of the aforesaid complaint, the complainant led evidence and after hearing both the sides, the learned Chief Judicial Magistrate vide order dated November 26, 1990 held that a prima facie case existed against the respondent Om Parkash and therefore a charge was ordered to be framed. The respondent assessee filed a revision petition before the learned Additional Sessions Judge challenging the aforesaid order dated November 26, 1990 passed by the learned Chief Judicial Magistrate. Vide order dated October 12, 1992, the learned Additional Sessions Judge, Sirsa accepted the said revision petition and after setting aside the order passed by the learned Chief Judicial Magistrate discharged the respondent-assessee. The complaint filed by the complainant was dismissed. It was held by the learned Additional Sessions Judge, Sirsa that order of the learned Chief Judicial Magistrate, Sirsa was unsustainable in the eyes of law inasmuch as it was based upon no evidence and therefore, it could not be held that any prima facie case had been made out from the prosecution evidence and therefore the said order was set aside.
6. The Wealth-tax Officer, the complainant, has now approached this Court through the present revision petition challenging the aforesaid order dated October 12, 1992 passed by the learned Additional Sessions Judge.
7. I have heard Shri R.P. Sawhney, learned senior counsel appearing for the petitioner and Shri A.K. Mittal, learned counsel appearing for the respondent and with their assistance have also gone through the record of the case.
8. Shri R.P. Sawhney, learned senior counsel appearing for the petitioner has vehemently argued that while exercising his revisional powers and passing the order dated October 12, 1992, the learned Additional Sessions Judge has exceeded his powers and has acted completely without jurisdiction. It is maintained by Shri Sawhney that in fact at the stage of framing of the charge u/s 245 of the Code of Criminal Procedure, the Court was only concerned with the determination of the fact as to whether a prima facie case, had been made out or not. According to Shri Sawhney, the Court was not to appraise the evidence with a view to form an opinion of conviction or acquittal at the aforesaid stage and therefore, the standard test, proof and judgment which are to be applied finally before finding the accused guilty or otherwise, were not required to be applied at the initial stage of framing of the charge. On that basis, Shri Sawhney has submitted that the perusal of the order passed by the learned Chief Judicial Magistrate would show that a finding of there being a prima facie case for the commission of the offence under sections 35A and 35B of the Wealth-tax Act had been duly returned by the learned Chief Judicial Magistrate. However, according to Shri Sawhney, the learned Additional Sessions Judge had sought to re-appraise the entire evidence with a view to find the guilt of the respondent. For this proposition, Shri Sawhney has relied upon a judgment of this Court in ITO v. Emerson Paul Plastic Co. [1991] 191 ITR 560.
9. On the other hand Shri A.K. Mittal, learned counsel appearing for the respondent has submitted that the learned Additional Sessions Judge while passing the order under revisions had given good reasons and had scanned the entire evidence. According to Shri Mittal, it was only after going through the entire evidence that a finding had been recorded by the learned Additional Sessions Judge that there was no prima facie case and that the order passed by the learned Chief Judicial Magistrate had been passed without there being any supporting evidence in this regard. On the basis of this fact Shri Mittal has submitted that no interference was called for by this Court in the present revision petition, more so, because of the fact that assessment in question pertained to the year 1980-81 and the matter had remained pending for almost 20 years.
10. I have given by thoughtful consideration to the entire matter. In the case of Emerson Paul Plastic Co. (supra), this Court while relying upon the law laid down by the Apex Court in R.S. Nayak v. A.R. Antulay AIR 1986 SC 2045 had held as follows:
In R.S. Nayak''s case, AIR 1986 SC 2045, the Supreme Court gave an illustration to bring out the meaning of the expression '' prima facie case''. It was stated that if the scales of a pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt, the case is to end in his acquittal. But, if, on the other hand, it is so at the initial stage of making an order u/s 227 or section 228, then, in such a situation, ordinarily and generally, the order which will have to be made will be one u/s 228 (charge to be framed) and u/s 227 (of discharge). Making a reference to Superintendent and Remembrancer of Legal Affairs v. Anil Kumar AIR 1980 SC 52, in which State of Bihar v. Ramesh Singh AIR 1977 SC 2018 was quoted, it was observed that the truth, veracity and the effect of the evidence which the prosecution proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of the charge. In determining whether a prima facie case had been made out, the evidence of the witnesses is entitled to a reasonable decree of credit. Where much can be said on both sides, it would be for the trial court to decide whether to accept the evidence or not. For purposes of prima facie case, the same would have been made out. A prima facie case is not made out where the evidence is totally unworthy of credit or the same is patently absurd or inherently improbable. It is obviously not possible to define the expression '' prima facie case'' because it will vary from case to case." (p. 564)
Keeping in view the law laid down by the Apex Court in R.S. Nayak''s case (supra) as well as by this Court in Emerson Paul Plastic Co.''s case (supra), I am of the considered opinion that the order passed by the learned Additional Sessions Judge, Sirsa, under challenge in the present revision petition, cannot be legally sustained. While exercising the powers under revision, the learned Additional Sessions Judge has apparently overstepped his jurisdiction inasmuch as, rather than finding out a prima facie case at the stage of the framing of the charge, the learned Additional Sessions Judge went into the re-appraisal of the entire evidence to find out as to whether the evidence brought on the record at that stage by the complainant was sufficient to law for the conviction of the respondent. This has resulted into an apparent error.
11. It was also argued that Shri A.K. Mittal, learned senior counsel appearing for the respondent that there was nothing on the record to show that the respondent-assessee had committed any offence punishable under sections 35A and 35B of the Act, inasmuch as, merely because an error had been noticed in the returns filed by the assessee, would not mean that there was any wilful or intentional concealment. Be that as it may at this stage it would not be proper for me to comment upon the aforesaid plea raised by the learned counsel. It would be always open for the respondent to raise up all such pleas before the learned trial Magistrate in accordance with law.
12. In view of the aforesaid discussion, the present revision petition is allowed and the order dated October 12, 1992 passed by the learned Additional Sessions Judge, Sirsa is set aside. The complaint filed by the Wealth-tax Officer, Ward-A, Sirsa against the respondent assessee Om Parkash son of Shri Megh Raj under sections 35A and 35B of the Wealth-tax Act, 1957 is restored back to its original number. The same shall be now tried by the learned Chief Judicial Magistrate, Sirsa in accordance with law.
13. Before parting with this judgment, I deem it appropriate to direct the learned Chief Judicial Magistrate, Sirsa that since the matter in question has become very old, therefore, the proceedings in the matter be concluded as expeditiously as possible and in any case not later than July 31, 2004. It is also directed that the personal presence of the respondent Om Parkash son of Shri Megh Raj shall remain exempted during the course of proceedings before the learned Chief Judicial Magistrate. However, the learned trial Magistrate would be well within his rights to secure the personal presence of the respondent, as and when required by him in accordance with law. It is also made clear that any observations made by this Court shall not influence the trial of the case before the learned trial Magistrate.
Petition allowed.
