Style Syntax 311 Application

 

N THE COURT OF Ms. GOMTI MANOCHA, LD ACMM (SPL ACT), TIS HAZARI COURT, NEW DELHI CC. No. 295277/2016  

In the matter of: M/s ITO M/s Style Syntax Pvt Ltd

… Complainant 

 Versus

… Accused 

NDOH:11.09.2017 INDEX

S.No.

Particulars

1. 

 Application under section 311 of the Code of

Page

Criminal Procedure, 1973 for Summoning Court Clerk/Court Officer to prove Certified Copies of order dated 25.07.2008 and 19.06.2017 passed by the Hon’ble Income Tax Appellate Tribunal (I. T.A.T.),

New Delhi and also to Registrar of Company, New Delhi to prove Roc Documents as Annexed in statement of 313 CrPC of AR for Accused No 1. 2. 

 Annexure A

Certified Copy of Form 18 for Change of Company  Address of Accused Accused No 1, M/s Style Style Syntax Pvt Ltd 3. 

 Annexure B

 The Certified Copy of order dated 25.07.200 25.07.20088 passed by the Hon’ble Income Tax Appellate  Tribunal (I. T.A.T.), T.A.T.), New Delhi. 

4. 

 Annexure C

 The Certified Copy of Form No 32 for Resignation from the post of Directors by by Accused No 2 and 3 in Accused No 1, M/s Style Syntax Pvt Ltd 5. 

 Annexure D

Certified copy of order dated 19.06.2017 the Hon’ble Income Tax Appellate Tribunal (I.T.A.T.),

New Delhi.

 

 

 Applicant Delhi Dated:

Through Counsel

 

 

IN THE COURT OF Ms. GOMTI MANOCHA, LD ACMM (SPL ACT), TIS HAZARI COURT, NEW DELHI CC. No. CC. No. 295277/2016  

In the matter of: ITO

… Complainant 

M/s Style Syntax Pvt Ltd

 Versus

… Accused 

NDOH:11.09.2017  APPLICATION UNDER SECTION 311 OF THE CODE OF CRIMINAL PROCEDURE, 1973 FOR SUMMONING COURT CLERK/COURT OFFICER TO PROVE CERTIFIED COPIES OF ORDER DATED 25.07.2008 AND 19.06.2017 PASSED BY  THE

HON’BLE HON’BLE

INCOME

TAX

APPELLATE APPELLATE

TRIBUN TRIBUNAL AL

(I.T.A.T.), NEW DELHI AND ALSO TO REGISTRAR OF COMPANY, NEW DELHI TO PROVE FORM 18 AND FORM 32  AS ANNEXED BY AR FOR ACCUSED NO 1 AND BY  ACCUSED NO 2.

RESPECTFULLY SHOWETH pending before this Hon’bl Hon’blee Court.  1.   That the present matter is pending

2.   That the present case is initiated on the basis of complaint filed by the Deputy Commissioner of Income-Tax against the accused persons, for the assessment year 2002-2003 2002-2003.. 3.   The main trust of the allegations against the accused acc used persons in the complaint are as follows: a.   The Assessee (Accused No. 1) filed a return of income Ex PW 1/4  ( Ex  ) under Section 115 JB declaring NIL

income on 31.10.02 (@ Para No. 2 of the Complaint  ), Ex PW pursuant to which, notice under Section 143 (2) ( Ex 2/1   ) was issued on 27.05.2003, which allegedly remained Ex PW 1/5  ) with uncomplied. Another notice ( Ex

questionnaire was issued on 25.11.2004, which allegedly

 

 

again remained uncomplied with. (@ Para No. 3 of the Complaint   )

b.  Accordingly, it is stated that a Show Cause Notice (hereinafter referred to as “ SCN ”) ”) dated 23.02.2005 ( Ex Ex

PW 2/2   ) under Section 144 of the Income Tax Act, was

issued, which allegedly again remained uncomplied with. (@ Para No. 3 of the Complaint  ) CW-2 Sh. P. K. c.   Thereafter, the Assessing Officer ( CW-2 Singh   )completed the assessment ex-parte vide order dated Ex PW 2/4  22.03.2005 ( Ex  ) at total income of

₹ 

18,43,480/-.. (@ Para No. 4 of the Complaint  ) 18,43,480/d.  In the Complaint, it is also mentioned that a Complaint against the said order dated 29.03.2005 was filed, however, the CIT Appeal III vide order dated 16.11.2006 16.11.2006 Ex PW 1/6  ( Ex  ) dismissed the same. (@ Para No. 4 of the Complaint   ).

e.  Subsequent thereto, penalty of

₹ 8,75,035

was imposed

CW-2 Sh. P. K. Singh  ) vide by the Assessing Officer ( CW-2 Ex PW 1/7  order dated 24.03.2007 ( Ex  ), and accordingly,

notice under Section 156 of the Income Tax Act was issued, but Assessee (Accused No. 1) failed to deposit the Ex PW 1/8  taxes due, and thus, notice ( Ex  ) under Section

221 of the Act was issued to deposit the outstanding amount of

₹ 

10,85,043.(@ Para No. 5 of the

Complaint   ). CW-1 Ms. Sujata f.  In view of the same, the Complainant ( CW-1

 Maitra   ) alleges commission of various offences under the

Income Tax Act. (@ Para No. 6 of the Complaint  ). 4.   That, the complaint is filed in relation to the Assessment Year 2002-03, and the complainant has based the whole complaint on the basis of Assessment Order dated 22.03.2005, wherein main additions made were:  A.  Disallowance of 10% of expenses claimed in the P&L Account and B.  Disallowance of other deduction/exemption/ benefit.

 

 

a.   As regards 10% of expenses claimed in the P&L  Account, the grounds grounds for disallow disallowance ance mentioned are:  A.  Expenses claimed in the profit & loss account are not justified and B.  No documentary evidence submitted to justify the claim of these expenditures. b.  As regards other benefits, the grounds for disallowance

mentioned are:  A.  Decline in percentage of gross profit from

13.05% to 11.85% not justified. On the basis of the above, the complainant has filed the present complaint. 5.   Accused No. 2 and 3 have been arrayed in as accused on the basis of the allegation that they are in-charge and Directors who are responsible for the affairs of Accused No. 1 and are liable for offences under the Act, as alleged. 6.   The Complainant in support of its case has examined two  witnesses, that is, PW-1 to PW-2, who have been cross-examined by the accused persons during both the pre-charge stage and postcharge stage in the matter. The details of the witnesses examined are as follows: 

  PW-1 Smt. Sujata Maitra  –  –  She   She is the complainant in the matter and



  PW-2 Sh. P K Singh - He is the assessing a ssessing officer who had passed the assessment order dated 22.03.200 22.03.2005. 5.

7.   That on 15.03.201 15.03.2016, 6, Statement u/s 313 CrPC of Authorized Representative (AR) for Accused No 1 M/s Style Syntex Pvt Ltd, Sh Avdesh Chaturvedi was recorded in which he said that no notice was received by the Accused Company as the Address on  which the Prosecution was sending notices to the Accused Company, was incorrect but the last notice which the Prosecution sent on 25.11.2004 was on a correct address but before that on 07.10.2004, the new directors of the company had already changed the Address of the Company. So none of the notice was received by the Accused Company.

 

 

 To prove the same Form No 18 18 had already been placed by the A AR R of Accused No 1 in his 313. The Certified Copy of the same is annexed herein as Annexure A. 8.   That AR of Accused No 1 M/s Style Syntex Ltd also stated in his 313 that subsequent to the Assessment Order (Ex PW 2/4), the same was challenged before the CIT, which challenged was dismissed vide order dated 16.11.2006. However, it is submitted that the said order (Ex PW 2/4) was subsequently set-aside vide order dated 25.07.2008 passed by the Hon’ble Income Tax

 Appellate Tribunal (I. T.A.T.), New Delhi, whereby directions  were issued to the Assessment Officer to make fresh orders. The certified copy of the said order has been placed on record.  The certified copy of the order dated 25.07.2008 is annexed herewith and marked as Annexure-B.

  9.  That, the Complainant was not even aware as to what had happened to the said orders and what subsequent orders were passed. The above is clear from the cross-examination of PW-1 dated 30.11.2015, relevant portion of which is reproduced herein

below: “I am not aware as to what happened after dismissal of appeal by CIT appeal vide order dated 16.11.2006 . I am not aware as to whether the assessment order was set aside or was remanded back or what happened after that . As I am

not aware of the same, I cannot comment on any development thereafter. I did not make any effort to find out about the same as I was not required to do so.” 

10. The   fallacy in the prosecution case is brought on record by way of the subsequent orders passed in relation to the Assessment of the  Accused No. 1 Company. It is clear that the assessment order was passed in respect of the two items, that is, one is expenses and other is on Gross Profit, however, the penalty under both the two has been set-aside.

  11. That the Complainant in the Complaint has referred to the passing of the CIT Appeal, however, the prosecution has deliberately

 

 

concealed from this Hon’ble Court the result of the said orders in

the Higher forums.

  12. That on 15.03.2016 in Statement u/s 313 CrPC of Accused No 2 Sh Amit Chaturvedi, annexed Form 32 on record regarding his resignation of Directorship of Accused No 2 and Accused No 3 from Accused No 1 M/s Style Syntex Pvt Ltd w.e.f. 27.09.2004   and had no concern at the time when Assessment Order dated 22.03.2005 was issued against the Accused Company M/s Style Syntex Pvt Ltd. The Certified of the Form 32 is annexed herein and marked as Annexure-C. 13. Form 32 uploaded with ROC is to be considered as genuine  –   –    That, Section 610 sub-section (3) of the Companies Act, 1956 states as hereunder: (3) A copy of, or extract from, any document kept and registered at any of the offices for the registration of companies under this Act, certified to be a true copy under the hand of the Registrar (whose official position it shall not be necessary to prove), shall, in all legal proceedings, be admissible in evidence as of equal validity with the original document.

 Thus, documents from the ROC showing the Board of Directors at the relevant period must be presumed to be correct and are unimpeachable documents. 14. That, the Authorized Representative (AR) for Accused No 1 M/s   Style Syntex Pvt Ltd, Sh Avdesh Chaturvedi and Accused No 2  were in impression that the above said annexure are a re to be read in evidence only. Further to it he realized that proving the said documents is also compulsory. 15. Subsequent to passing of the said order dated 25.07.2008, a fresh  Assessment Order was was passed on the basis of estimates. Thereafter Thereafter,, ultimately, penalty under Section 271 (1) (c) of the Income Tax Act  was imposed. The same was finally set-aside by the Income Tax  Appellate Tribunal vide its order dated 19.06.2017. The certified

 

 

copy of the order dated 19.06.2017 is annexed herewith and marked as Annexure-D.

  16. That A question may arise as to whether can the above said two orders, certified copies of which have been placed on record, can be taken into consideration by this Hon’ble Court. The answer to

the same lies in Section 74 and 79 of the Indian Evidence Act ,  which incorporates a presumption as to genuineness of Certified Copies. 17. That   That at the outset, it is submitted that the whole case of the

Complainant is based on the Assessment Order dated 22.03.2005,  which has been aside vide order dated 25.07.200 25.07.20088 by the Hon’ble Income Tax Appellate Tr Tribunal ibunal (I. T.A.T.), New Delhi and also also the Penalty regarding concealment of facts imposed on us have been waived off by the Hon’ble Income Tax Appellate Tribunal (I.

 T.A.T.), New Delhi in their order dated 19.06.2017. 19.06.2017.  18. That in view of the above present application is moved by the    Accused for Summoning Court Clerk/Court Officer to prove Certified copies of order dated 25.07.2008 and 19.06.2017 passed by the Hon’ble Income Tax Appellate Tribunal (I.T.A.T.), New

Delhi and also to Registrar of Company, New Delhi to prove Form 18 and Form 32 and to put light and consider the present facts of the case to this Hon’ble Court. 

  19. That the applicant cannot be made to suffer on account of non availability of the documents. The denial of an opportunity to lead this evidence on record shall result into serious miscarriage of justice.

  20. That the only consideration for the purpose of disposal of the present application is that the evidence proposed to be adduced is relevant or not. Reliance is placed upon Natasha Singh V Central Bureau of investigation reported (2013)5 SCC741 which reads:

"14. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining  proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious

 

 

exercise of such power may lead to undesirable results.  An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the  prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a  power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 Cr.P.C. must, therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as 'any Court', 'at any stage', or 'or any enquiry', trial or other proceedings', 'any person' and 'any such person' clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the  fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should, 'therefore, be whether the summoning/recalling of the said witness is in fact, essential: to the just decision of the case. 15. Fair trial is the main object of criminal procedure and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a  person's right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a  fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously  followed, and the court must be zealous in ensuring that there is no breach of the same. (Vide Talab Haji Hussain v. Madhukar Purshottam Mondkar & Anr.,  AIR 1958 SC 376; Zahira Habibulla H. Sheikh &

 

 

 Anr. v. State of Gujarat & Ors. AIR 2004 SC 3114; Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC1367; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258; Vijay Kumar v. State of U.P.& Anr., (2011) 8 SCC 136; and Sudevanand v. State through C. B.I. (2012) 3 SCC 387.)”  

21. SECTION 311 CR.P.C. SHOULD ENSURE THAT THE  JUDGMENT SHOULD NOT BE RENDERED INCHOATE,

INCONCLUSIVE

ON

SPECULATIVE

PRESENTATION OF FACTS, AS THEREBY THE ENDS OF JUSTICE WOULD BE DEFEATED. 

 That the evidence sought to be placed on record is important to the case. Relying upon Natasha Singh (supra) Hon’ble Supreme Court in Rajaram Prasad Yadav V State of Bihar (SLP(Crl) 2400 of 2011- decided on 04.07.2013) has laid down the principles for considering application under section 311 Cr.P.C which reads: “23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the  Evidence Act, we feel fee l the following principles will have to be borne in mind by the Courts: a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case? b) The exercise of the widest discretionary power

under Section 311 Cr.P.C. should ensure that the  judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated. c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the  power of the Court to summon and examine or recall and re-examine any such person. d) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

 

 

e) The exercise of the said power cannot be dubbed as  filling in a lacuna in a prosecution case, unless the  facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.  f) The wide discretionary power should be exercised  judiciously and not arbitrarily. arbitrarily.  g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a  just decision of the case. h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision. i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.  j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no  party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford ·an opportunity to them in the  fairest manner possible. In that tha t parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. I) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be  germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.

 

 

n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.”   In view of the principles laid down above, the relief sought herein is liable to be allowed by this Hon’ble Court. 

22. POWERS POWERS UNDER SECTION 311 OF THE CODE OF CRIMINAL PROCEDURE, 1973 CAN BE EXERCISED BY  THIS HON’BLE

COURT AT ANY

STAGE OF ANY

INQUIRY, TRIAL OR OTHER PROCEEDINGS UNDER  THE CODE It is submitted that the powers under section 311 of the Code of Criminal Procedure, 1973 can be exercised by this Hon’ble Court at

any stage of any inquiry, trial or other proceedings under the Code and the power of this Hon’ble Court to call any witness can be

invoked even if the evidence has been closed or even if the matter is fixed for final judgment, as long as the Court retains the seisin of the said criminal proceedings. It has been held by the Hon’ble Supreme Court of India in Mohanlal Shamji Soni Vs Union Of India 1991 CRI.L.J. 1521 that: “…In order to enable the court to find out the truth and render a just decision, the statuary  provision S.540 of the code (S. 311 of the new code) are enacted whereunder any courts by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any  person as a witness or examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if  judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts,

 

 

the end of judgment would be defeated. The very usage of words such as ‘any Court’, ‘at any stage’, trial or order  proceedings’, or ‘ of any enquiry’, ‘ trial ‘any person’ and ‘any such person’ clearly spells out that this section is expressed in the widest  possible terms and do not limit the discretion of the court in a way …”  …”   the Hon’ble Court in  Aeltemsh Vs State Of Maharashtra 23. That  

1980 Cri.L.J.858 has held that: “6 . Section 311 of the code empowers the

 Magistrate to summon and examine any person at at any stage as a court witness.”  

  the Hon’ble Court in Samarendra Kumar Deb Nath Vs 24. That Union Of India 1981 CRI.L.J.NOC.144 has held that: “... Petitioner failing to establish in application

that some positive and specific documents were “necessary and desirable” to be called - Application would be rejected as being “vague and careless”.

However fresh application is not barred, if such occasion arises …”  …”   the Hon’ble Orissa High Court in Karam Chand Mukhi 25. That  

and others Vs. Santosh Pradhan and another, 2004 Cri. L. J 4380 observed in paras 12 as under: “12. …The provision in Section 311 of the Code emphasises on the principle of providing substantial  justice to the parties. In that context 'parties' means both accused and the complainant. Neither category of the persons are to be excluded while considering the question of advancement of substantial justice. …Even when the prosecution or the informant/complainant or both fail in making such motion, but it comes to the notice of the trial Court that some relevant witnesses have been omitted in the list of witnesses submitted by the prosecution though there are ample circumstances available on

record necessitating their examination for a proper and truthful decision of the matter in the case, then

 

 

by recording the reason thereof, i.e., by making a speaking order the trial Court can suo motu examine such witnesses. That is the amplitude/arena of jurisdiction vested in a Court under Section 311 of the Code. It is not to be circumvented or curtailed by any narrow interpretation.”  

26. It is submitted that the interest of justice is always to be kept in mind and defence evidence, which will have a vital bearing on the case, should be shut out. No party in a criminal case ought to be foreclosed from correcting errors, if any. The evidence sought to be placed on record is material to the case. The evidence is required for the purpose of arriving at the truth and for the just decision in the case, thus it is necessary that to allow the present application. 27. That   in view of the facts and circumstances mentioned above, the applicant by means of the present application prays before this Hon’ble Court that necessary orders and directions be passed,

thereby allowing the present application and permitting the  Accused No 1 to Accused 3 in the present matter, in the interest of justice.

  28. That the allowing of the present application shall be in the interest of justice, in the interest of a fair decision in the matter and in the interest of Accused No1.

  29. That the present application has been preferred in the most bonafide manner, as advised under law. PRAYER  

It is, therefore, most respectfully prayed that, in view of submissions made herein above, this Hon’ble Court may kindly be pleased to: a.  Pass necessary orders and directions thereby allowing the present application and summoning Court Clerk/Court Officer of IT Dept also to Registrar of company, New Delhi on oath qua the documents referred herein above, in the interest of justice;

 

 

 AND

b.  Pass any other order and directions as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

 Applicant Delhi Dated:

Through Counsel