A finding in a criminal proceeding is not binding in a civil proceeding, and the standard of proof for imposing liability is widely different between the two proceedings.

Sambuddha Chakrabarti, J.

1. The petitioner herein seeks review of the judgments and orders, dated November 8, 2005 and November 14, 2005 respectively passed by a Division Bench of this Court in ITA No.81 of 2004.

2. The circumstances leading to the filing of the appeal may be summed up briefly to appreciate the scope of the review. Certain watch movements were found in the possession of the assessee by the Customs Department which were held to be of foreign origin. They were confiscated by the Customs authority. The assessee in turn claimed the same to be business loss in the return of income for the year 1989-90. The tax authority as well as the Commissioner of appeal assessed the same as an income from undisclosed source and added to the income of the assessee as income from business. The Income Tax Appellate Tribunal affirmed the order against which the assessee had filed an appeal under Section 260A of the Income Tax Act to this Court.

3. Before this Court the primary question that came up for consideration was whether the confiscation of goods from the appellant amounted to a loss in business carried on by the appellant and was allowable under the Income Tax Act. The Division Bench after considering the submissions of both the parties and after considering the various judgments had observed that confiscation is a liability personal to the smuggler. There was nothing to indicate that smuggling was a part of the business activity of the assessee and he also did not admit that it was so. Ultimately the Court held that the confiscation of this smuggled goods could not be treated to be a business expenditure or a business loss for the purpose of deduction of the said amount in course of compensation of the profits and gains from the business of the assessee. Accordingly the appeal was dismissed.

4. The Customs authorities also initiated a criminal case against the assessee under Section 135(1)(b)(i) of the Customs Act 1962 on the self-same allegation of seizure of a large number of wrist watch movements of foreign origin from the chamber of false ceiling and boxes on demand. The assessee failed to prove any document in support of his legal possession of those watch movements. The raid was also conducted in the house of the accused wherefrom also a large number of watch moments were recovered.

5. In the trial had followed the learned Metropolitan Magistrate 7th Court Calcutta by a judgment and order dated January 8, 2002 held the accused to be not guilty and acquitted him to charges.

6. The Customs filed an appeal from the same before this Court and the learned Single Judge of this Court had dismissed the same.

7. The dismissal of the appeal is the occasion for filing the present review application. According to the petitioner/assessee this is a subsequent event which has a bearing on the right of the petitioner to the reliefs prayed for in the appeal filed him under Section 260A of the Income Tax Act. The case of the petitioner is that since it has been held in the criminal case that it could not be proved beyond reasonable doubt that the watch movements were of foreign origin and there was no satisfactory explanation whether the seized cash was the sale proceed of the smuggled goods, it could not be proved beyond all reasonable doubt that the watch movement fell within the purview of prohibitory orders.

8. Based on that the petitioner claims that he is entitled to have the reliefs as prayed by him before the Income Tax authorities, namely, allowance of loss caused by the seizure in view of the finding of facts relating to the fundamental basis of the decision of the Income Tax authorities as well as the Tribunal and this Court. According to him the very basis and reasoning cannot be sustained and, therefore, the judgment passed by this Court in the Income Tax appeal requires a review. The primary foundation in seeking a review is the judgment in the criminal courts which had held the watch movements not to be of foreign or