INCOME TAX ACT, 1961

Section 276C Section 278B

Prosecution - Offence under section 278B - No mens rea on assessee's part -

Assessee did not disclose income on acount of capital gains in return filed by it. AO, therefore, levied penalty under section 271(1)(c). As assessee failed to pay penalty, Trial Court convicted assessee for committing offences under section 276C(2) and 278B. Assessee by way of criminal revision petition submitted that Trial Court failed to take into consideration the necessity and requirement for marking documents by way of additional evidence and assessee did not have wilful intention or mens rea to conceal income, and intended to mark these documents as additional evidence at the time of appeal. Held: Petition under section 391 of Cr.PC had been filed by assessee even at the time of presentation of appeal. Documents sought to be marked as additional evidence were not new documents and were documents relating to filing of returns in respect of earlier eyars and copies of which were also available with AO by marking of these documents, nature or course of the case would not be altered. The documents had not been produced before Trial Court due to inefficiency or inadvrtence of person who conducted the case. Where documents were left out to be marked due to carelessness and ignorance, it could be allowed to be marked for elucidation of truth, in the interest of justice, by exercising powers under section 391 of Cr.PC. Intention of section 391 of Cr.PC is to empower Appellate Court to see that justice is done between prosecutor and the prosecuted. Acordingly assessee was to be allowed to let in additional evidence subject to provisions of Chapter XXIII of Cr.PC in the presence of respondent/complainant and his counsel. In the result, this Criminal Revision Petition is allowed.

REFERRED :

FAVOUR : In assessee's favour.

A.Y. :

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