Reena Roy Vs The State Of Jharkhand And Anr.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Rev. No. 1401 of 2016

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Reena Roy wife of Tapas Kumar Roy, resident of Village and P.O. Chirkunda, Police Station- Chirkunda, District- Dhanbad

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… … Petitioner

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Versus

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The State of Jharkhand

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Income Tax Department through complainant Vijay Bhaskar son of Lala Ashutosh Kumar Sharan, Income Tax Officer, Ward II (3), Income Tax Office, Mada Building. P.O. and Police Station Dhanbad, District-Dhanbad.

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… … Opposite Parties

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Rahul Kumar, Advocate For the Income Tax Department: Mr. Anurag Vijay, Advocate : Mr. Omprakash, Advocate For the State : Mr. Rajneesh Vardhan, APP ---

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11 /13.09.2024

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1. Heard the learned counsel for the parties.

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2. This revision petition has been filed challenging the judgment dated 18.07.2016 passed by the Additional Sessions Judge X Dhanbad in Cr. Appeal No. 93 of 2015 whereby the appeal has been dismissed. The petitioner has been convicted vide judgement dated 28.05.2015 by Special Judge Economic Offence Dhanbad in C.O. case No. 28 of 2004 under sections 277 of Income Tax Act and sentenced to undergo rigorous imprisonment for three months and to pay fine of Rs. 2500/and in case of default further sentenced to undergo simple imprisonment for one month.

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Argument of the petitioner.

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3. The learned counsel for the petitioner while assailing the impugned judgments has submitted that the impugned judgments are perverse and call for interference. He has submitted that his argument is confined to two points:

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(A) Whether there is a mental intent on the part of the petitioner within the meaning of section 278(E) of the Income Tax Act?

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(B) Whether the signature of the petitioner on the verification form of the income tax return has been proved or not?

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4. The learned counsel has referred to paragraph 8 of the trial court’s judgement to submit that the specific case of the petitioner was that the petitioner does not know English and could only sign in Bangla and was not aware about the provisions of Income Tax. He submits that there were contradictions in the testimony of the witnesses. The learned counsel appearing on behalf of the petitioner has also submitted that the petitioner having completely denied her signature on the return, therefore her signature itself could not be proved.

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Argument of the Income tax department (complainant)

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5. The learned counsel appearing on behalf of the Income Tax Department has opposed the prayer and has submitted that every aspect of the matter has been taken care of by the learned courts while convicting the petitioner. He submits that the petitioner had filed returns and the verification clause was signed by the petitioner. The return was marked as exhibit 2 and the petitioner claimed refund of Rs. 52,680/- on account of some claim under housing loan and some TDS certificate on the basis of income derived from LIC. The learned counsel has submitted that the reply filed by the petitioner pursuant to the notice issued by the Income Tax Department was marked as Exhibit 5 which is an admitted document from the side of the petitioner. The petitioner took a stand that she had put her signature though on blank return form. The learned counsel has also submitted that in the reply to the show cause the petitioner had taken a stand that she had done so at the instance of one Satyaban Roy. The learned counsel submits that the signature in the return form stands admitted in the show cause reply (exhibit-5).

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6. The learned counsel has further referred to the provisions of section 278E of Income Tax Act and has submitted that said provision has been taken into consideration. There is presumption in connection with the mens rea in the matter involving prosecution under Income Tax Act and the petitioner has failed to rebut the presumption. The petitioner did not lead any defence evidence. The learned counsel has submitted that no material was put forwarded by the petitioner to dislodge the said presumption. Rather the petitioner was in a state of complete denial before the learned court although in the show cause reply the petitioner did not disown the filing of the return and the petitioner did not deny signature in the verification form.

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Findings of this Court.

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7. After hearing the learned counsel of the parties and considering the facts and circumstances of this case, this Court finds that as per the prosecution case the petitioner had filed false income tax return and wrongly claimed refund of Rs. 52,680/- for the assessment year 200203 by showing that the petitioner was having income from LIC and furnished TDS certificate and that the petitioner had taken housing loan for which deduction was claimed and such documents to claim refund were found to be forged and fabricated upon verification.

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8. After verification that the documents used for seeking refund were forged, a show cause notice was issued to the petitioner and in response, the petitioner did not deny filing of the return and the signature in the verification form but stated that the petitioner had signed on blank verification form at the instance of two persons Satyaban Roy and one A.K. Chatterjee; Satyaban Roy had approached her to file returns as normally done and assured her that he would show her income out of sewing, embroidery etc. and with that hope that Satyaban Roy will submit the return and other documents correctly, the petitioner had put her signature in blank form. She alleged that the entire false and fabricated documents were created by Satyaban Roy to create refund about which she had neither any

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knowledge nor she had advised Mr. Satyaban Roy to do such illegal things.

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9. However, being dis-satisfied with the show cause reply filed by the petitioner, the prosecution was launched and before the court the prosecution led both oral and documentary evidence to prove their case and the defence did not lead any evidence, either oral or documentary. The learned court had scrutinized and materials on record and recorded finding against the petitioner and held the petitioner guilty under section 277 of the Income Tax Act. The learned court has also relied upon section 278E of the Income Tax Act with respect to ‘culpable mental state’ while convicting the petitioner.

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10. Before the learned Trial Court, interalia, the return in SARAL form (Exhibit-2), the show-cause notice issued by the income tax department (Exhibit-4) and also the show cause reply filed by the petitioner (Exhibit–5) have been marked exhibits without any objection from the side of the petitioner. The filing of return is not in dispute. Further, in the show-cause reply, the petitioner had not disputed about her signature in the SARAL form and filing of return although she stated that she had signed on blank form with a hope that Satyaban Roy would file her correct returns and Satyaban Roy was the actual culprit. In the light of the aforesaid proved facts, the argument of the petitioner that she only knows bangla and no other language has rightly been rejected by both the courts and this court also finds no merits in such arguments. The petitioner, in the statement before the court examination under section 313 of Code of Criminal Procedure, has admitted that she had filed the return. In view of the aforesaid facts and circumstances there is no scope for the petitioner to contend that the signature on the verification of SARAL form was not proved.

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11. This court finds that the prosecution had proved the required facts to hold the petitioner guilty of offence under section 277 of the Income Tax Act and so far as mens rea i.e ‘culpable mental state’ is

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concerned that is certainly required to be dealt with in accordance with section 278 E of the Income Tax Act.

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12. Section 278 E of the income tax Act is quoted as under: -

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“278E. Presumption as to culpable mental state.—(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

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Explanation. —In this sub-section, “culpable mental state” includes intention, motive or knowledge of a fact or belief in, or reason to believe, a fact.

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(2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.”

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13. The aforesaid section 278E clearly provides that in any prosecution under the Income Tax Act, which requires a ‘culpable mental state’ on the part of the accused, the court shall presume the existence of such ‘culpable mental state’ but it shall be a defence for the accused to prove the fact that the accused had no such ‘culpable mental state’ with respect to the act charged as an offence in that prosecution. The explanation provides that “culpable mental state” includes intention, motive or knowledge of a fact or belief in, or reason to believe, a fact. Sub-section (2) provides the way and the extent to which the fact is to be proved by the accused for the purposes of rebuttal the presumption under section 278E. It provides that a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not when its existence is merely established by ‘preponderance of probability’.

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Meaning thereby, if the accused has to prove a fact to dislodge the presumption under section 278E, the accused has to prove the fact in such a manner that the court believes it to exist beyond reasonable doubt and such a presumption of culpable mental state cannot be dislodged by mere ‘preponderance of probability’ but the accused has

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to prove the existence of the fact on the basis of which the accused claims to shift the onus to the prosecution so as to enable the court to prove such fact relied upon by the accused beyond reasonable doubts. 14. In the judgment passed by the Hon’ble Supreme Court reported in (2011) 14 SCC 644 (Income Tax Officer, Jind Vs. Mangat Ram Norata Ram Narwana and Another), the Hon’ble Supreme Court has, inter alia, considered the provisions of section 278 of Income Tax Act while dealing with conviction under section 276-C(1)(i) and section 277 of Income Tax Act and has dealt with the burden or onus of proof in connection with prosecution under Income Tax Act. In the said case, the accused did not raise any objection that he had not signed and filed the returns in question and his conduct proved that he did not raise any dispute at any point of time and had paid the penalty also. The Hon’ble Supreme Court held that the prosecution had proved regarding admission of filing and signing the returns by the accused and held that once prosecution has proved this fact, it was for the accused to demonstrate that he did not sign the return which the accused in the said case did not do. The Hon’ble Supreme Court ultimately held in paragraph 11 of the said judgment that there is no statutory requirement that the signature on the return is to be made in presence of the Income Tax Authority and nothing was brought in evidence by the accused that the signature did not belong to him on the return and the penalty was paid mistakenly.

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15. This Court finds that the present case is squarely covered by the ratio of aforesaid judgment relied upon by the learned counsel for the income tax department. As discussed above, in the present case also the foundational facts to convict the petitioner were duly proved by the prosecution and nothing was brought in evidence by the accused to dislodge the presumption of ‘culpable mental state’ and shift the burden upon the prosecution in terms of section 278 E. Nothing has been brought in evidence by the petitioner to disbelieve that the petitioner had signed the verification form on the face of admission about filing of the return.

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16. This court is of the considered view that once the aforesaid facts were proved by the prosecution, the actus reus to constitute an offence under section 277 of the Income Tax Act was duly proved. With regards to mens rea , Section 278 E providing for presumption of ‘culpable mental state’ comes into play and as per sub-section 2 of section 278 E the onus does not shift to the prosecution on the principles of ‘preponderance of probabilities’ but the fact asserted by the petitioner was required to be proved by cogent evidence beyond reasonable doubts up to the satisfaction of the court in order to shift the onus to prove the element of mens rea upon the prosecution. Mere denial or mere passing on the blame of filing false return to a third person is not sufficient. This court finds that the petitioner has not been able to discharge the onus with regards to presumption of ‘culpable mental state’ under Income Tax Act. This court is of the considered view that both the learned courts have fully considered the materials on record and rightly convicted the petitioner for offence under section 277 of the Income Tax Act and rightly relied upon the legal presumption of ‘culpable mental state’ on the part of the petitioner in terms of section 278 E of the Income Tax Act.

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17. Both the points argued by the learned counsel for the petitioner, that is, regarding denial of signature on the verification form on the ground that the petitioner does not know any other language other than bangla and absence of ‘culpable mental state’ are devoid of any merits and are rejected in view of the aforesaid findings/discussions.

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18. The learned counsel for the petitioner has not been able to demonstrate any perversity, illegality or material irregularity in the impugned judgments as all the materials and attending facts and also the provision of law has been duly taken into consideration while convicting the petitioner by the learned trial court and/or upholding the conviction of the petitioner by the learned appellate court. The impugned judgements of conviction and sentence do not call for any interference in revisional jurisdiction of this court.

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19. The criminal revision petition is accordingly dismissed.

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20. Bail bond furnished by the petitioner is cancelled.

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21. Let a copy of this order be communicated to the court concerned through ‘FAX/E-mail’.

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(Anubha Rawat Choudhary, J.)

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Rakesh/-