JAGDISH CHANDRA, J : (Oral)

( 1 ) A complaint under Sections 276-01277 of the Income-tax Act, 1961 (in short the Act) and under Sections 193/196 Indian Penal Code was made by Shri R. R. Gupta Inspecting Assistant Commissioner (hereinafter to be referred to as IAC) of Income-tax (Assessment ). Range XIV, New Delhi against the present petitioner Dr. R. P. Gupta in respect of the assessment of the petitioner for the assesment year 1980-81 alleging thar the petitioner had wilfully attempted to evade tax. interest and penalty and had made a statement in verification. delivered an account and statement which are false, which he knew or believed to be false or did not believe the same to hetrue and had also fabricated false evidence Fertile purpose of using the same in the course of income-tax proceedings and that he dishonestly and fraudulently used that evidence in the course of the assessment proceedings which are judicial proceedings. It is alleged that after investigation the assessment of the petitioner was completed for the assessment year 1980-81 and the next income of the petitioner was assessed at Rs. 1,77,433. 00 vide assessment order dated 21-3-1983. It was also asserted that for the aforesaid assessment order the petitioner had shown gross profit of Rs. 30,254 on the sales of Rs. 1,45,016 but. however. after the completion of the assessment proceedings the. gross profit of the accused was assessed at Rs. 1,12,500 resulting in the addition of Rs. 82,246.

( 2 ) THE petitioner was summoned in the complaint as an accused person.

( 3 ) AN application dated 25-4-1986 was made by the petitioner in the court of Smt. Manju Goel ACMM praying for dropping the proceedings against him for the reason that the order passed on 3-3-1986 on appeal by the Commissioner of Income-tax (Appeals), it had been declared that the petitioner had not consealed his income and than the case had been remanded for that purpose. That application was, however, dismissed by the learned ACMM Delhi vide her order dated 23-7-1986. The order dated 3-3-1986 passed in appeal by Shri U. P. Singh, Commissioner of Income-tax (Appeals) : IV, New Delhi is a brief one and is reproduced in its entirety below :-

the appeal is against the order U/s. 143 (3) of the Income Tax Act, 1961. The appellant alongwith Shri U. P. Sharma appeared.

THE only ground is against the addition of Rs. 82,246 in the trading account as against the receipt shown of Rs. 96,000. The I. A. C. enhanced the receipt to Rs. 2,25,000. He also estimated the gross profit @ 50 per cent on the above and added the difference of the g. p. estimated and the g. p. returned amounting to Rs. 82,246. It is pointed out by the learned counsel that first of all there was no basis for enhancement in receipt and secondly the g. p. rate applied is very arbitrary and high. The I. A. C. went through the books of accounts and could not find the accounts fully maintained. He went through the circumstantial evidence as well as the papers available at that time with him. The appellant has produced documents now which show complete variation with the determination of the profit by the learned I. A. C. It will be proper that these documents are looked by the assessing authority and formulate and calculate the income accordingly. The case is set aside to him for the purpose.

( 4 ) IT is pointed out by Mr. Gupta learned counsel for the petitioner that the only thing against him in the complaint was set at naught by the aforesaid order dated 3-3-3986 as a result of which the assessment for the year 1980-81 stood set aside in view of certain new document produced by the petitioner before the Commissioner of Income-tax (Appeals) appears to have been complete variation with the determination of the profit by the IAC who was directed to look into those documents and to formulate and calculate the income accordingly. This order of the Commissioner of Income-tax (Appeals) appears to have been passed under Section 251 (1) (a) of the Act

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