Court
HIGH COURT OF DELHI
Brief
The instant appeal concerns, two of the several purchase orders placed by the respondent „Milkfood Ltd.‟ upon M/s.Dany Dairy Food Engineer Ltd. (DDFE) i.e. the purchase orders dated May 25, 1988 and September 10, 1988, for due performance of which, at the asking of DDFE, the appellant, Union Bank of India, had issued three bank guarantees No.614 dated June 09, 1988 in sum of `50,00,000/- (Rupees Fifty lakhs), reduced later on to `25,00,000/- (Rupees Twenty five lakhs) and extended up to June 08, 1990; bank guarantee No.615 dated June 09, 1988 in sum of `16,50,000/- (Rupees Sixteen Lakhs Fifty thousand) valid up to June 08, 1990 and; bank guarantee No.626 dated September 12, 1988 in sum ofn`12,00,000/- (Rupees twelve lakhs) valid up to June 11, 1990
Citation
UNION BANK OF INDIA..... Appellant Represented by: Mr.Rakesh Tiku, Senior Advocate instructed by Mr.S.W.Haider and Mr.Vivek Ojha, Advocates. Versus M/S. MILKFOOD LTD. ….Respondent Represented by: Ms.Simar K.Narula and Ms.Sanyukta Singh, Advocates
Judgement
* IN THE HIGH COURT OF DELHI AT New Delhi
% Date of Decision: May 14, 2012
+ RFA(OS) 64/2007
UNION BANK OF INDIA..... Appellant
Represented by: Mr.Rakesh Tiku, Senior Advocate
instructed by Mr.S.W.Haider and
Mr.Vivek Ojha, Advocates.
Versus
M/S. MILKFOOD LTD. ….Respondent
Represented by: Ms.Simar K.Narula and
Ms.Sanyukta Singh, Advocates
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR
PRADEEP NANDRAJOG, J. (Oral)
1. The instant appeal concerns, two of the several purchase orders placed by the respondent „Milkfood Ltd.‟ upon M/s.Dany Dairy Food Engineer Ltd. (DDFE) i.e. the purchase orders dated May 25, 1988 and September 10, 1988, for due performance of which, at the asking of DDFE, the appellant, Union Bank of India, had issued three bank guarantees No.614 dated June 09, 1988 in sum of `50,00,000/- (Rupees Fifty lakhs), reduced later on to `25,00,000/- (Rupees Twenty five lakhs) and extended up to June 08, 1990; bank guarantee No.615 dated June 09, 1988 in sum of `16,50,000/- (Rupees Sixteen Lakhs Fifty thousand) valid up to June 08, 1990 and; bank guarantee No.626 dated September 12, 1988 in sum ofn`12,00,000/- (Rupees twelve lakhs) valid up to June 11, 1990.
2. Undisputably, the three bank guarantees are unconditional and payable on demand, without demur.
3. Alleging default committed by DDFE in supply of equipment, respondent invoked the three bank guarantees by three separate demand letters dated June 21, 1990.
4. It appears that the appellant was having a problem with DDFE, which appears to have defaulted with respect to the credit facilities it was enjoying with the appellant. Instead of honouring its obligation under the three bank guarantees, appellant wrote to DDFE requesting that amount covered by the bank guarantees be paid to the appellant so that it could honour the bank guarantees.
5. Upon learning about the bank guarantees being invoked when appellant wrote to DDFE, suit for permanent injunction was filed by DDFE in the Court of the Civil Judge, Saharanpur to restrain appellant from making payment under the bank guarantee. An ex-parte ad-interim injunction was granted by the learned Civil Judge restraining the appellant from making any payment under the three bank guarantees, which injunction was finally vacated on February 13, 1992 and it needs to be simply highlighted that while granting the exparte ad-interim injunction, the learned Civil Judge at Saharanpur observed with respect to grant of injunction and balance of convenience as under:-
“Against this restraining the defendant No.2 from making payment to Defendant No.1 till disposal of the case, without making payment to Defendant No.1 will not result in irreparable loss to him as the option of invocation of Bank Guarantee and right to receive payment from Defendant No.1 will remain open in case the Plaintiff fails and the guarantee will also be intact with bank.”
6. The three bank guarantees being unconditional and payable on demand and without demur, the appellant cannot seek to urge that it is not liable to pay any money under the three guarantees due to a dispute between the respondent and DDFE.
7. Two technical pleas have been advanced. The first is that Courts at Delhi would not have jurisdiction to entertain the suit.
8. Suffice would it be to state that as per the testimony of Shri S.P.Khurana PW-2, the contract between the respondent and DDFE was executed at Delhi. The three bank guarantees in favour of the respondent were issued by the appellant to the respondent at Delhi and were addressed to the respondent at its address at Delhi, notwithstanding the bank guarantees being issued by the Saharanpur branch of the appellant. The letters extending the bank guarantees were addressed to the respondent at Delhi. DW-2, Senior Manager of the appellant bank, during cross-examination admitted that the bank guarantees did not specify any place of payment and that the amount could be paid at any place at the request of the respondent.
9. It is settled law that in the absence of any covenant in the agreement settling a place of payment, the debtor must seek the creditor and pay at the place where the creditor is stationed. And, suffice would it be to state that the registered office of the respondent is atDelhi.
10. The second technical argument advanced is the bar of limitation, and for which we note that the instant suit was instituted on May 22, 1993.
11. As noted herein above, two out of the three bank guarantees were valid up to June 08, 1990 and the third was valid up to June 11, 1990. The three bank guarantees were invoked onMarch 21, 1990. It is urged by Shri Rakesh Tiku, learned senior counsel for the appellant that the bank guarantees being payable on demand, limitation would commence from March 21, 1990, when the guarantees were invoked, and thus urges that the suit which was filed on May 22, 1993 would be barred by limitation.
12. The argument ignores the fact that after the bank guarantees were invoked on March 21, 1990, an injunction operated against the appellant to pay under the bank guarantees fromJanuary 17, 1991 till the injunction was vacated on February 13, 1992. This period has to be excluded in view of Section 15(1) of the Limitation Act. 13. We would simply highlight that the learned Single Judge has highlighted the relevant terms of the three bank guarantees in para 71 and 72 of the impugned decision, to bring out that the liability of the appellant is to pay on demand and without demur. The learned Single Judge has noted the identical language of bank guarantee No.614 and 626. The learned Single Judge has noted similar language in bank guarantee No.615 and we do not re-note the said terms. Indeed, the guarantees have been correctly read by the learned Single Judge.
14. The learned Single Judge has noted, in paragraph 75 to 76 of the impugned decision that the demand raised while invoking the bank guarantees is in conformity with the requirement of the bank guarantee.
15. A brief attempt appears to have been made before the learned Single Judge to advance arguments on the subject of fraud, but realizing the narrow space afforded by law to seek restraint from payment under a bank guarantee on grounds of fraud, no such submission has been advanced before us.
16. The appeal fails and is hereby dismissed with costs against the appellant and in favour of the respondent.
(PRADEEP NANDRAJOG)
JUDGE
(INDERMEET KAUR)
JUDGE
| Posted on 02 June 2012 by Diganta Paul |
Court
INCOME TAX APPELLATE TRIBUNAL
Brief
Briefly stated facts of the case are that the assessee company is engaged in the business of manufacturing of Soya Oil. In the case of Ruchi Soya Group, a search and seizure action u/s 132(1) of the Income Tax Act 1961 (the Act) was carried out by the department on 17.11.2005 at their various premises located at Mumbai and Indore. The assessee company is a member of Ruchi Soya Group and was covered under the search action u/s 132(1) of the Act. In response to notice issued u/s 153A of the Act, the assessee filed return declaring total income of Rs. 5,16,64,918/- as against original return filed declaring total income of Rs. 4,91,64,918/-. The difference of Rs. 25 lacs in the return filed u/s 153A is the declaration made by the assessee during the course of search. However, the assessment was completed after making disallowance u/s 10A of the Act Rs. 65,14,829/- and disallowance u/s 14A Rs. 9,827/- on a total income of Rs,. 5,81,89,574/- vide order dtd. 24-12-2007 passed u/s 153A r.w.s. 143(3) of the Act. On appeal, the ld. CIT(A) partly allowed the appeal.
Citation
General Foods Limited, 51, Broach Street, Ist floor, Kapadia Chambers, Mumbai. PAN: AAACG5677J (Appellant) Vs. Asstt. Commissioner of Income Tax- Central Circle 40, Mumbai. (Respondent)
Judgement
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCHES “G”, MUMBAI
BEFORE SHRI DINESH KUMAR AGARWAL (J.M.)
AND SHRI N.K. BILLIAYA (A.M.)
ITA No. 3565/MUM/2008
Assessment Year: 2004-05
General Foods Limited,
51, Broach Street, Ist floor,
Kapadia Chambers, Mumbai.
PAN: AAACG5677J
(Appellant)
Vs.
Asstt. Commissioner of Income
Tax- Central Circle 40, Mumbai.
(Respondent)
ITA No. 3796/MUM/2008
Assessment Year: 2004-05
Asstt. Commissioner of Income
Tax- Central Circle 40, Mumbai.
(Appellant)
Vs.
General Foods Limited,
51, Broach Street, Ist floor,
Kapadia Chambers, Mumbai.
PAN: AAACG5677J
(Respondent)
Assessee by: Shri Deepak Nagor
Revenue by: Shri Pavan Ved
Date of hearing 14-5-2012
Date of pronouncement 23-5-2012
O R D E R
PER DINESH KUMAR AGARWAL, J.M.
These cross appeals by the assessee and the Revenue are directed against the order dated31-3-2008 passed by the ld. CIT (A) – Central VII, Mumbai for the A.Y. 2004-05. Both these appeals are disposed of by this common order for the sake of convenience.
2. Briefly stated facts of the case are that the assessee company is engaged in the business of manufacturing of Soya Oil. In the case of Ruchi Soya Group, a search and seizure action u/s 132(1) of the Income Tax Act 1961 (the Act) was carried out by the department on 17.11.2005 at their various premises located at Mumbai and Indore. The assessee company is a member of Ruchi Soya Group and was covered under the search action u/s 132(1) of the Act. In response to notice issued u/s 153A of the Act, the assessee filed return declaring total income of Rs. 5,16,64,918/- as against original return filed declaring total income of Rs. 4,91,64,918/-. The difference of Rs. 25 lacs in the return filed u/s 153A is the declaration made by the assessee during the course of search. However, the assessment was completed after making disallowance u/s 10A of the Act Rs. 65,14,829/- and disallowance u/s 14A Rs. 9,827/- on a total income of Rs,. 5,81,89,574/- vide order dtd. 24-12-2007 passed u/s 153A r.w.s. 143(3) of the Act. On appeal, the ld. CIT(A) partly allowed the appeal.
3. Being aggrieved by the order of the ld. CIT(A), the assessee and the Revenue both are in appeal before us. ITA No. 3565/Mum/2008 (assessee’s appeal)
4. All the grounds taken by the assessee are against the sustenance of disallowance of deduction u/s 10A of the Act amounting to Rs. 6514829/-.
5. Briefly stated facts of the above issue are that during the course of assessment proceedings, the A.O. noted that the assessee has claimed deduction u/s 10A of the Act amounting to Rs. 6514829/- for manufacturing and making exports from SEZ Kandla supported by a report in Form No. 56F submitted along with the return. On making necessary verification it was, inter alia, observed by the A.O. that the assessee claimed that it is converting Soyabean Meal to Soyabean Meal Super Grade and claiming deduction u/s 10A of the Act. However, on perusal of the P&L account, the A.O. observed that no activity is undertaken, it is only purchases which are exported under the garb of SEZ Kandla and accordingly he held that no manufacturing activity has been carried out and thus the assessee company is not eligible for deduction u/s 10A of the Act.
6. On appeal, the ld. CIT(A) observed that the appellant has failed to rebut the observations and the findings of the A.O. whatsoever, it is not disputed that no manufacturing activities were undertaken by the appellant which is the pre-requisite for claiming such deduction, manual or processing through machine did not result into a new product though it might have improved the quality of the goods and after relying on certain decisions cited at page 6 of his order, upheld the disallowance made by the A.O.
7. At the time of hearing, the assessee’s representative filed written submission inter alia stated as under:-
“3. Newly introduced sub-section 1OA(1A) allowed deduction of 100% of profits and gains derived by an undertaking from export of articles or things which the undertaking begins to manufacture or produce during the previous year commencing on or after 1.4.2003 in any SEZ.
4. During the previous year relevant to assessment year 2004-05, the assessee set up a unit in Kandla SEZ and made exports therefrom. Necessary documents in support were submitted. Agreement (as envisaged in para 8 of the SEZ Scheme) between the assessee and the Govt. for setting up the SEZ Unit for manufacture of edible soya products (customized) appears at page 16-18 of the Paper Book. Copy of Green Card valid upto 28.2.2009 issued by Development Commissioner KSEZ is at page 15 of PB.
5. The assessee purchased the raw material, i.e. yellow Soyabean Meal Extraction at Kandla and thereafter the materials were transferred to SEZ shed of the, unit. Being agro based products, certain manufacturing process were carried out so as to convert it in different grades of product meant for export. The material purchased was tested for its quality parameters including moisture content, impurities, protein content etc. The processing involved cleaning, grading and blending which converted the raw material into finished product of uniform, consistent and desired product quality for export. It was done in assessee’s SEZ unit. It was got done on job work basis from Rishi Shipping, another SEZ unit also for which approval from development Commissioner was taken.
6. It will be seen from MOU entered into between the assessee and Rishi Shipping (copy at pages 19-20 of PB) that Soyabean Deoiled Cake (Soyabean Extraction) which is the raw material was processed in the plant and Soyabean Meal (Super Grade) was produced.
6.1. The finished good is complete new product having a distinct name and is used for high protein isolate and concentrate. Therefore, the AO/CIT(A) erred in holding that no manufacturing activity was carried out.”
Reliance was also placed on following decisions:-
1. CIT v. Budharaja (N.C.) and Co. 204 ITR 412 (SC),
2. Aspinwall and Co. Ltd. v. CIT 251 ITR 323 (SC),
3. CIT vs. Sesa Goa Ltd. 271 ITR 331 (SC),
4. PRP Granites v. ACIT (2009) 221 CTR (Mad) 371,
5. Vijay Ship Breaking Corpn. V. CIT 219 CTR (SC) 639 (SC),
6. ACIT v. Mukherjee & Co. (P) Ltd. 113 ITR 718 (Cal),
7. CIT v. Rajmohan Cashews (P.) Ltd. 185 ITR 472 (Ker),
8. CIT v. Talwar Khullar (P) Ltd. 235 ITR 70 (All),
9. Chillies Exports House Ltd. v. CIT 225 ITR 814 (SC),
10. CIT v. Gaekwar Foam & Rubber Co. Ltd. 35 ITR 662 (Bom), and
11. Capsulation Services P. Ltd. v. CIT 91 ITR 566 (Bom).
8. On the other hand, the ld. D.R. supports the order of the A.O. and
the ld. CIT(A).
9. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that the claim of the assessee that it is engaged in the business of manufacturing i.e. converting Soyabean Meal to Soyabean Meal Super Grade which according to the assessee a distinct commodity from the raw material. It was further claimed that during the previous year relevant to the assessment year 2004-05 the assessee has set up a unit in Kandla SEZ and made exports and also claimed deduction u/s 10A of the Act. However, we find that the claim of the assessee has not been examined either by the A.O. or by the ld. CIT(A) despite the fact that the assessee, before the ld. CIT(A), has filed its written submissions appearing at page 3 to 5 of the order of the ld. CIT(A). The ld. CIT(A) without giving any cogent reason that the assessee is not engaged in the manufacturing activity has rejected the claim of the assessee by holding that it is not disputed that no manufacturing activities were undertaken by the appellant which is a prime pre-requisite for claiming deduction. It is not the case of the Revenue that the assessee is not converting Soyabean Meal to Soyabean Meal Super Grade or the said conversion does not amount to manufacturing activity. This being so, we are of the view that the issue has not been examined properly and hence, in the interest of justice, we consider it fair and reasonable that the matter should go back to the file of the A.O. and accordingly we set aside the order passed by the Revenue Authorities on this account and send back the matter to the file of the A.O. to decide the same afresh in the light of our above observations and according to law after providing reasonable opportunity of being heard to the assessee. The grounds taken by the assessee are, therefore, partly allowed for statistical purpose.
ITA 3796/Mum/2008 (By Revenue)
10. Grounds of appeal No. 1 & 2 taken by the Revenue read as under:-
“1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing benefit of telescoping of Rs.25,00,000/- while upholding the A.O.’s action of disallowance of assessee’s claim of deduction u/s.10A of the I.T. Act, 1961 at Rs.40,24,656/-.
2. The appellant prays that the order of CIT(A) on the above ground be set aside and that of the Assessing Officer be restored.”
11. Brief facts of the above issue are that while filing the return, the assessee disclosed an additional income of Rs. 25 lakhs and offered for tax on adhoc basis so as to cover up any discrepancies and disallowances out of expenditure debited to P&L account. However, the A.O. except mentioning that the assessee has filed revised return declaring extra income of Rs. 25 lakhs did not discuss this issue in the assessment order. Before the ld. CIT(A) the assessee, inter alia, stated that without prejudice to the legality of deduction claimed u/s 10A of the Act, the disallowance u/s 10A may be restricted to Rs. 40,24,656/- only instead of Rs. 64,24,656/-. The ld. CIT(A) after considering the assessee’s letter and the submissions, held that the appellant is entitled to telescoping of Rs. 25 lakhs disclosed as additional income from the income determined by the A.O. after disallowing the claim u/s 10A and directed the A.O. to give credit thereof and re-determine the assessed income and hence allowed the claim of the assessee.
12. At the time of hearing, the ld. D.R. supports the order of the A.O. However, he did not dispute that now the issue stands covered in favour of the assessee by the decision of the Tribunal in the case of M/s National Steel & Agro Industries Ltd. ACIT and vice versa in ITA Nos. 4558 to 4561/Mum/2008 for A.Ys. 2000-01 to 2003-04 & ITA No. 4476 to 4478/Mum/2008 for A.Ys. 2001-02 to 2003-04 dtd. 12.3.2010.
13. On the other hand, the ld. Counsel for the assessee submits that the issue stands covered in favour of the assessee by the decision of the Tribunal in M/s National Steel & Agro Industries Ltd. (supra).
14. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that the facts are not in dispute inasmuch as it is also not in dispute that the assessee while filing the return of income in response to the notice u/s 153A declared an additional income of Rs. 25 lakhs and, in alternative, claimed that the disallowance, if any, u/s 10A may be restricted to Rs. 40,24,656/- only instead of Rs. 64,24,656/-. The ld. CIT(A) after examining the issue held that the assessee is entitled to telescoping of Rs. 25 lakhs disclosed as additional income from the income determined by the A.O.
15. In M/s National Steel & Agro Industries Ltd. (supra) it has been held as under (para 12):-
“Coming to the issue of telescoping which is ground No. 2 for assessment year 2001-02 and ground No. 3 for assessment year 2002-03 and ground No. 1 for assessment year 2003-04, in the light of our discussion and the legal position while considering ground No. 2 in the assessee’s appeal, we fully agree with the findings of the CIT (Appeals) and hold that there is no error whatsoever in the direction of the CIT (Appeals) to the A.O. to grant the benefit of telescoping. When the assessee has declared additional income, obviously the same is available for explaining either expenditure or for explaining the investments made during that year. These grounds raised in the Revenue’s appeals are dismissed.”
In absence of any distinguishing feature brought on record by the Revenue, we respectfully following the order of the Tribunal (supra) in the group case of the assessee, decline to interfere with the order passed by the ld. CIT(A) on this account and accordingly the grounds raised by the Revenue are rejected.
16. In the result, assessee’s appeal stands partly allowed for statistical purpose and Revenue’s appeal is dismissed.
Order pronounced on this 23rd day of May, 2012.
Sd/- Sd/-
(N.K. BILLIAYA) (DINESH KUMAR AGARWAL)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai, Dated 23rd May, 2012.
RK
Copy to:
1. The Appellant
2. The Respondent
3. Commissioner of Income Tax (Appeals)- Central VII, Mumbai
4. Commissioner of Income Tax –Central- 4, Mumbai
5. Departmental Representative, Bench ‘G’, Mumbai
//TRUE COPY//
BY ORDER
ASSTT. REGISTRAR, ITAT, MUMBAI
| Posted on 02 June 2012 by Diganta Paul |
Court
INCOME TAX APPELLATE TRIBUNAL
Brief
We find that the only grievance of the Revenue is that the amendment brought in the Income Tax Act u/s. 40(a(ia) was only effective from 1.4.2010 and not retrospective in nature
Citation
Income Tax Officer, Ward 38(2), Room No. 234A, 2nd floor, CR Bldg., IP Estate, New Delhi (Appellant) Vs. Sh. Naresh Kumar Through Legal Heir Sh. Naveen Kumar, 9307, Gaushala Marg, Kishan Ganj Delhi – 110 006 (PAN/GIR NO.:AALPK0199D) (Respondent)
Judgement
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH “E”, NEW DELHI
BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER
AND
SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER
I.T.A. No. 1300/Del/2012
A.Y. : 2008-09
Income Tax Officer,
Ward 38(2), Room No. 234A,
2nd floor, CR Bldg., IP Estate,
New Delhi
(Appellant)
Vs.
Sh. Naresh Kumar
Through Legal Heir Sh. Naveen
Kumar,
9307, Gaushala Marg,
Kishan Ganj
Delhi – 110 006
(PAN/GIR NO.:AALPK0199D)
(Respondent)
Assessee by: Sh. J.C. Aggarwal, CA
Department by: S h. R.S. Negi, Sr. D.R.
ORDER
PER SHAMIM YAHYA: AM
This appeal by the Revenue is directed against the order of the Ld. Commissioner of Income Tax (Appeals)-XXVIII, New Delhi dated 05.1.2012 pertaining to assessment year 2008-09.
2. The grounds raised read as under:-
“1. The Ld. Commissioner of Income Tax (Appeals) grossly erred in deleting the addition of ` 52,10,873/- made by the Assessing Officer u/s. 40(a)(ia) on account of late deposit of TDS made
by the assessee with respect to rent, commission and maintenance expenses not appreciating fact that the amendment brought in the Income Tax Act u/s. 40(a)(ia) was only effective from 01.4.2010 and not retrospective in nature.
2. The appellant craves to add, amend or modify the ground of appeal at any time.”
3. In this case Assessing Officer noted that as per column 27(b) of the Audit Report the following TDS has been deposited late.
Amount of Tax
Deducted / collected
at source (in `)
|
Due date for
remittance to
Government
|
Details of
payment;
Date/ (in `)
|
2,869/-
|
7/8/2007
|
23/9/2008
|
8,180/-
|
7/9/2007
|
23/9/2008
|
3,881/-
|
7/10/2007
|
23/9/2008
|
5,446/-
|
7/11/2007
|
23/9/2008
|
1,678/-
|
7/12/2007
|
23/9/2008
|
5,853/-
|
7/1/2008
|
23/9/2008
|
12,239/-
|
7/2/2008
|
23/9/2008
|
13,526/-
|
7/3/2008
|
23/9/2008
|
3.1 Assessing Officer further held that since the assessee was required to deduct TDS @ 1.03% the amount on which TDS has been deducted late comes to ` 5210873/-. Assessing Officer held that in view of the provisions of section 40a(ia), an addition of ` 5210873/- would be made while computing the income of the assessee.
4. Before the Ld. Commissioner of Income Tax (Appeals) it was submitted that the Assessing Officer has erred on the facts and circumstances of the case in invoking the provisions of section40(a)(ia). It was further submitted that the only question that could arise in the instant case is whether the TDS deducted during the financial year 2007-08 which was deposited on 23.9.2008 i.e. before the date of filing of return of income for A.Y. 2008-09 relevant to F.Y. 2007-08 attracted the provisions of section 40A(ia) so that the amount on which tax was deducted could be held to be not deductible under that section. Assessee further referred to the provisions of section 40A(ia)as under:-
“(ia) any interest………. or amounts payable to a contractor or sub-contractor, being resident,………….. on which tax is deductible at source under Chapter XVII-B and such tax has not been deducted or, after deduction, has not been paid on or before the due date specified in sub section (1) of section 139.
4.1 Referring to the above, assessee submitted that the aforesaid section is attracted in either of the following situations:-
a) If the TDS is deductible but has not been deducted.
b) If the TDS has been deducted but has not been paid before 30.9.2008.
4.2 It was submitted neither of the situations is attracted in the case of the assessee. The deductible tax has been deducted and the deducted tax has been deposited before 30.9.2008.
4.3 Assessee further placed reliance on the following case laws:-
a) Calcutta High Court in the C.I.T., Kol-XI, Kol vs. Virgin Creations (ITA No. 302 of 2011, GA 32000/2011).
b) ITAT, Mumbai ‘B’ Bench in Bansal Parivahan (India) Pvt. Ltd. vs. ITO (2011) 137 TT (Mumbai) 319 : (2011) 43 SOT 619: (2011) 53 DTR 40 : (2011) 9 ITR 565.
c) ITAT, Ahmedabad ‘A’ Bench in Dynamic Builders vs. ITO (ITA No. 1625/Ahd./2008)
d) ITAT, Ahmedabad ‘A’ Bench in Aavkar Developers vs. ITO (ITA No. 3165 / Ahd./ 2009).
e) ITAT, Mumbai ‘G’ Bench in Golden Stables Life Centre Pvt. Ltd. vs. C.I.T. (ITA No. 5145/Mum/2009) reported at 2010-TIOL-596-ITAT-Mum.
4.4 It was submitted in all the above cases, it has been held that provision inserted by Finance Act, 2010 is retrospective in nature. Ld. Commissioner of Income Tax (Appeals) considered the above, he referred to the decision of ITAT, Mumbai ‘B’ Bench in Bansal Parivahan (India) Pvt. Ltd. vs. ITO (2011) 9 ITR 565 and held as under:-
“…..The provisions of s. 40(a)(ia) as stood prior to the amendments made by the Finance Act, 2010 thus were resulting into unintended consequences and causing grave and genuine hardships to the assessee who had substantially complied with the relevant TDS provisions by deducting the tax at source and by paying the same to the credit of the Government before the due date of filing of their returns under s. 139(1). In order to remedy this position and to remove the hardships which was being caused to the assessee’s belonging to such category, amendments have been made in the provisions of s. 40(a)(ia) by the Finance Act, 2010. The said amendments, in our opinion, thus are clearly remedial / curative in nature as held by Hon’ble Supreme Court in the case of Allied Motors (P) Ltd. (supra) and Alom Extrusions Ltd. (supra) and the same therefore would apply retrospectively w.e.f. 1st April, 2005. In the case of R.B. Jodha Mal Kuthiala vs. C.I.T. (1971) 82 ITR 570 (Supreme Court), it was held by the Hon’ble Supreme Court that a proviso which is inserted to remedy intended consequences and to make the provisions workable, requires to be treated as retrospective in operation so that a reasonable interpretation can be given to the section as a whole. In the present case,\ the amount of TDS from the freight charges during the period 1st April, 2005 to 28th Feb, 2006 was paid by the assessee in the months of July and August, 2006 i.e., well before the due date of filing of its return of income for the year under consideration. This being the undisputed position, we hold that the disallowance made by the Assessing Officer and confirmed by the Ld. Commissioner of Income Tax (Appeals) on account of freight charges by invoking the provisions of s. 40(a)(ia) is not sustainable as per the amendments made in the said provisions by the Finance Act, 2010 which, being remedial /curative in nature have retrospective application. Accordingly, we delete the said disallowance and allow ground no. 2 of this appeal.”
4.5 Ld. Commissioner of Income Tax (Appeals) further referred the decision of the Hon’ble Calcutta High Court in the case of Commissioner of Income Tax, Kol vs. Virgin Creations (ITA No. 302 of 2011, GA 32000/2011) where it was held that the amendment in section 40(a)(ia) is remedial /curative in nature and has retrospective effect. In view of these decisions and the facts of the case, the disallowance made by the Assessing Officer u/s. 40(a)(ia) to the tune of ` 52,10,873/- was deleted.
5. Against the above order the Revenue is in appeal before us.
6. We have heard the rival contentions in light of the material produced and precedent relied upon. We find that the only grievance of the Revenue is that the amendment brought in the Income Tax Act u/s. 40(a(ia) was only effective from 1.4.2010 and not retrospective in nature. However, we find that in a catena of case laws as mentioned, it has been held that the amendment in section 40(a)(ia) is remedial and curative in nature and has retrospective effect. In this case, admittedly, the TDS deducted was deposited before the date of the filing of the return and under such situation, there cannot be any disallowance u/s. 40(a)(ia). Thus we find that Ld. Commissioner of Income Tax (Appeals) has taken a correct view in the matter, which does not need any interference on our part. Accordingly, we uphold the same.
7. In the result, the appeal filed by the Revenue stands dismissed.
Order pronounced in the open court on 21/5/2012, upon conclusion of hearing.
Sd/- Sd/-
[A.D. JAIN] [SHAMIM YAHYA]
JUDICIAL MEMBER ACCOUNTANT MEMBER
Date 21/5/2012
“SRBHATNAGAR”
Copy forwarded to: -
1. Appellant
2. Respondent
3. CIT
4. CIT (A)
5. DR, ITAT
TRUE COPY
By Order,
Assistant Registrar,
ITAT, Delhi Benches
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| Tags :- tds deposited filling return cannot disallowed sec 40ia |
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| Posted on 02 June 2012 by Praveen Sharma |
Court
Supreme Court
Brief
Facts: Vineshwari along with her brother, ,was having a bath in the water. Kali Charan and Ganeshi, PW 2, were grazing their cattle in the field situate at a short distance. The accused-appellant, a resident of the village, cajoled Vineshwari to accompany him to the nearby field. The younger brother, Dharam Veer, innocently followed them. At that juncture, the appellant took off her undergarment and with the intention to have intercourse flung her on the ground. The young girl cried aloud and her brother, the five year old child, raised an alarm. Kali Charan and Ganeshi followed by the brother to the field and shouted for Pitambar, - Pitambar with his elder son witnessed that the accused was pressing the neck of Vineshwari. - The accused made an effort to run away but he was apprehended. However, unfortunately by that time, the girl had already breathed her last. - The prosecution submitted the chargesheet under Sections 302 and 376 read with 511 of the Indian Penal Code - Due to were discrepancies and contradictions in the testimony of the witnesses trial court came to the conclusion that the prosecution had failed to prove its case beyond reasonable doubt and accordingly acquitted the accused of the charge. - challenged before the High Court - HC over-turned the judgment of acquittal to that conviction and sentenced the accused to undergo life imprisonment for the offence under Section 302 IPC and to undergo rigorous imprisonment for ten years for the offence under Section 376 read with 511. - appeal preferred in SC. Observations : 1. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 2. It is the duty of the court to shift the chaff from the grain and find out the truth from the testimony of the witnesses. A testimony of the witness is required to inspire confidence. It must be creditworthy. 3. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. 4. Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is said that one’s physical frame is his or her temple. No one has any right of encroachment. Held : High Court has done right thing by converting the decision of acquittal to that of conviction and imposed the sentence as per law.Appeal, dismissed
Citation
CRIMINAL APPEAL NO. 82 OF 2008 JUGENDRA SINGH .....……..Appellant Versus STATE OF U. P. ………Respondent
Judgement
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 82 OF 2008
JUGENDRA SINGH .....……..Appellant
Versus
STATE OF U. P. ………Respondent
J U D G M E N T
Dipak Misra, J.
1. From the days of yore, every civilised society has developed various kinds of marriages to save the man from the tyranny of sex, for human nature in certain circumstances has the enormous potentiality of exhibiting intrigue, intricacy and complexity, in a way, a labyrinth. Instances do take place where a man becomes a slave to this tyrant and exposes unbridled appetite and lowers himself to an unimaginable extent for gratification of his carnal desire. The case at hand graphically exposes the inferior endowments of nature in the appellant who failed to husband his passion and made an attempt to commit rape on a nine year old girl and the tears of the child failed to have any impact on his emotion and even an iota of compassion did not surface as if it had been atrophied and eventually he pressed her neck which caused instant death of the nervous young girl.
2. Presently, we shall proceed with the narration. The facts as unfolded by the prosecution, in brief, are that on 24.06.1994, Vineshwari along with her brother, Dharam Veer, aged about five years, was having a bath in the water that had accumulated in front of the house of the informant, Pitambar, their father, due to a crack in the nearby canal. Kali Charan and Ganeshi, PW 2, were grazing their cattle in the field situate at a short distance. The accused-appellant, a resident of the village, cajoled Vineshwari to accompany him to the nearby field belonging to one Layak Singh. The younger brother, Dharam Veer, innocently followed them. At that juncture, the appellant took off her undergarment and with the intention to have intercourse flung her on the ground. The young girl cried aloud and her brother, the five year old child, raised an alarm. Kali Charan and Ganeshi who had seen the accused taking the girl followed by the brother to the field of Layak Singh rushed to the place and shouted for Pitambar, PW-1. Hearing the shout, Pitambar with his elder son Harpal rushed to the spot and witnessed that the accused was pressing the neck of Vineshwari. By the time they could reach the spot, the accused made an effort to run away but he was apprehended. However, unfortunately by that time, the girl had already breathed her last. Leaving the accused in the custody of the villagers, Pitambar went to the police station and lodged an FIR.
3. After the criminal law was set in motion, the accused was arrested and the investigating officer, Balvir Singh, PW 7, reached the spot and carried out the investigation. The dead body of the deceased was sent for post mortem. The Investigating Officer seized the garment of the deceased, the clothes of the accused and certain other articles and prepared the seizure memo. After recording the statements of the witnesses under Section 161 of the Code of Criminal Procedure and completing further investigation, the prosecution submitted the chargesheet under Sections 302 and 376 read with 511 of the Indian Penal Code (for short “the IPC”) before the competent court which in turn committed the matter to the Court of Session wherein it was registered as S.T. No. 1098 of 94.
4. The plea of the defence was one of denial and false implication.
5. The accused chose not to adduce any evidence.
6. In order to prove its case, the prosecution examined eight witnesses, namely, Pitamber @ Pita, PW-1 (father of the deceased), Ganeshi, PW-2, Dharam Veer, PW-3, Dr. S.K. Sharma, PW-4, Head Constable Mahfooj Khan, PW-5, Dr. S.R.P. Mishra, PW-6, Balvir Singh, S.I., PW-7 and Constable Vinod Kumar, PW-
7. Pitamber @ Pita PW-1 stated on oath that the accused influenced his daughter Vineshwari, who was taking bath in the canal water to accompany him to the nearby field. He has further stated that the accused attempted to commit rape on his daughter and ultimately strangulated her throat that caused her death. Ganeshi, PW-2 deposed that he along with Kali Charan was there. On hearing the cry of the girl, he and Kali Charan went to the field of Layak Singh and found that the accused was trying to commit rape on Vineshwari and tied a shirt on her neck. Dharam Veer, PW-3, could not be examined because he was unable to grasp the questions. 8. Dr. S.K. Sharma, PW-4 conducted the post mortem of Vineshwari and found the following anti-mortem injuries:- (1) Abrasion 5 cm. X 1 cm. over Rt. Ramus of jaw extending neck region. (2) Abrasion 3 cm. X 1 cm. over left Supra Clovicular region. No injury was found on the private parts and/or thighs nor on chest and buttocks. However, two vaginal smears were prepared and sent for pathological examination. Over eternal pericardium larynxes and both the lungs of the deceased, deposits of blood were found. Except this, the liver, pancreas, spleen and both kidneys were filled with blood. On interior examination, Larynx, Trachea, Bronchi and Lungs were found congested. According to Dr. S.K. Sharma, the death of the deceased took place due to asphyxia as a result of throttling.
9. Dr. S.R.P. Mishra, PW-6 examined the accused Jugendra and found certain contusions, abrasions and superfluous injuries on his body.
10. Balvir Singh, S.I., PW-7 proved the site plan, recovery memo of underwear of Vineshwari, panchnama, report to C.M.O. and chargesheet.
11. The learned trial Judge appreciating the evidence on record found that there were discrepancies and contradictions in the testimony of the witnesses; that it was difficult to believe that the accused was laying upon the deceased in the presence of Kali Charan and Ganeshi; that the deposition of witnesses that they had found blood on the spot had not received corroboration from the examination of Dr. S. K. Sharma, P. W. 4, who had deposed that the blood had not oozed out from the body of the deceased girl; that the colour of the under garment of the girl as stated by her father did not tally with the colour described in the recovery memo; that as per the medical report there was no injury on the private parts of the deceased; that there was difference in the time mentioned by the witnesses as regards the lodging of the FIR inasmuch as the investigating officer arrived at the spot between 1.30 to 2.00 p.m. whereas the FIR was lodged at 2.45 p.m.; and that the colour of the shirt was not properly stated by the witnesses. Because of the aforesaid findings, the trial court came to the conclusion that the prosecution had failed to prove its case beyond reasonable doubt and accordingly acquitted the accused of the charge.
12. The aforesaid judgment of acquittal came to be challenged before the High Court in Criminal Appeal No. 2644of 1998 on the ground that the view expressed by the learned trial Judge was totally perverse since minor discrepancies and contradictions had been magnified and the real evidence had been ignored. It was also put forth that the trial court failed to appreciate the fact that the accused was apprehended at the spot and nothing had been brought on record to dislodge the same. It was also urged that the view expressed by the trial court was totally unreasonable and defied logic in the primary sense.
13. The High Court perused the evidence on record and opined that unnecessary emphasis had been laid on minor discrepancies by the trial court and the view expressed by it was absolutely perverse and remotely not a plausible one. Being of this view, it over-turned the judgment of acquittal to that conviction and sentenced the accused to undergo life imprisonment for the offence under Section 302 IPC and to undergo rigorous imprisonment for ten years for the offence under Section 376 read with 511 of IPC with the stipulation that both the sentences shall run concurrently.
14. We have heard Mr. Lav Kumar Agrawal, learned counsel for the appellant, and Mr. R. K. Dash, learned counsel for the State.
15. It is contended by Mr. Agrawal that the High Court has not kept in view the parameters on which the judgment of acquittal is to be interfered with and has converted one of acquittal to conviction solely by stating that the judgment is perverse. It is urged by him that the discrepancies and contradictions have been discussed in detail by the trial court and he has expressed a well reasoned opinion that the prosecution has failed to bring home the charge, but the said conclusion has been unsettled by the High Court by stating that the said discrepancies are minor in nature. It is his further submission that the ocular evidence has not received any corroboration from the medical evidence and further the material particulars have been totally overlooked and hence, the judgment of conviction is sensitively vulnerable.
16. Mr. Dash, learned senior counsel appearing for respondent, has canvassed that the learned trial judge had treated the ordinary discrepancies which are bound to occur when rustic witnesses have been accentuated as if they are in the realm of high degree of contradiction and inconsistency. It is submitted by him that when the judgment of the trial court suffers from perversity of approach especially in relation to the appreciation of evidence and the view cannot be treated to be a possible one, no flaw can be found with the judgment of reversal by the High Court.
17. To appreciate the submissions raised at the bar and to evaluate the correctness of the impugned judgment, we think it appropriate to refer to certain authorities in the field which deal with the parameters for reversing a judgment of acquittal to that of conviction by the appellate court.
18. In Jadunath Singh and Others v. State of U.P. , a three Judge Bench of this Court has held thus:- 1 AIR 1972 SC 116Page 10 “This Court has consistently taken the view that an appeal against acquittal the High Court has full power to review at large all the evidence and to reach the conclusion that upon that evidence the order of acquittal should be reversed. This power of the appellate court in an appeal against acquittal was formulated by the Judicial Committee of the Privy Council in Sheo Swarup v. King Emperor, 2 and Nur Mohammad v. Emperor 3 . These two decisions have been consistently referred to in judgments of this Court as laying down the true scope of the power of an appellate court in hearing criminal appeals: see Surajpal Singh v. State 4 and Sanwat Singh v. State of Rajasthan 5 . ”
19. In Damodar Prasad Chandrika Prasad and Others v. State of Maharashtra 6 it has been held that once the Appellate Court comes to the conclusion that the view of the trial court is unreasonable, that itself provides a reason for interference. The two-Judge Bench referred to the decision in State of Bombay v. Rusy Mistry, 7 to hold that if the finding shocks the conscience of the Court or has disregarded the norms of legal process or substantial and grave injustice has been done, the same can be interfered with. 61 Ind App 398 = AIR 1934 PC 227 3 AIR 1945 PC 151 4 1952 SCR 193 = AIR 1952 SC 525 (1961) 3 SCR 120 = AIR 1961 SC 7156 AIR 1972 SC 6227 AIR 1960 SC 391Page 1111
20. In Shivaji Sahebrao Bobade and another v. State of Maharashtra 8 , the three-Judge Bench opined that there are no fetters on the plenary power of the Appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage of our jurisprudence owes to individual liberty constrains the higher court not to upset the finding without very convincing reasons and comprehensive consideration. This Court further proceeded to state that the cherished principles of golden thread to prove beyond reasonable doubt which runs through the wave of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. Emphasis was laid on the aspect that a balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish the marginal innocents.
21. In State of Karnataka v. K. Gopala Krishna 9, it has been held that where the findings of the Court below are fully 8 AIR 1973 SC 26229 AIR 2005 SC 1014Page 1212 unreasonable or perverse and not based on the evidence on record or suffer from serious illegality and include ignorance and misreading of record, the Appellate Court will be justified in setting aside such an order of acquittal. If two views are reasonably possible and the view favouring the accused has been accepted by the courts below, that is sufficient for upholding the order of acquittal. Similar view was reiterated in Ayodhya Singh v. State of Bihar and others.
22. In Anil Kumar v. State of U.P. 11 , it has been stated that interference with an order of acquittal is called for if there are compelling and substantial reasons such as where the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated.
23. In Girija Prasad (dead) by LRs. v. State of M. P. 12 , it has been observed that in an appeal against acquittal, the Appellate Court has every power to re-appreciate, review and reconsider the evidence as a whole before it. It is, no doubt, true that there is a presumption of innocence in favour of the accused and that presumption is reinforced by an order of acquittal recorded by the 10 2005 9 SCC 58411 2004 13 SCC 257 12 2007 7 SCC 625Page 1313 trial court, but that is not the end of the matter. It is for Appellate Court to keep in view the relevant principles of law to re-appreciate and reweigh as a whole and to come to its own conclusion in accord with the principle of criminal jurisprudence.
24. In State of Goa v. Sanjay Thakran 13 , it has been reiterated that the Appellate Court can peruse the evidence and interfere with the order of acquittal only if the approach of the lower court is vitiated by some manifest illegality or the decision is perverse.
25. In State of U. P. v. Ajai Kumar 14 , the principles stated in State of Rajasthan v. Sohan lal 15 were reiterated. It is worth noting that in the case of Sohan Lal, it has been stated thus:- “This Court has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no 13 2007 3 SCC 75514 AIR 2008 SC 126915 (2004) 5 SCC 573Page 1414 distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal.”
26. In Chandrappa v. State of Karnataka 16 , this Court held as under: - “42 From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the 16 (2007) 4 SCC 415Page 1515 court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”
27. In S. Ganesan v. Rama Raghuraman and others 17 , one of us (Dr. B.S. Chauhan,J.), after referring to the decision in Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra 18, considered various aspects of dealing with a case of acquittal and after placing reliance upon earlier judgments of this Court, particularly in Balak Ram v. State of U.P.19 , Budh Singh v. State of U.P. 20, Rama Krishna v. S. Rami Reddy 21 , Aruvelu v. State 22 and Babu v. State of Kerala 23 , held that unless there 17 (2011) 2 SCC 83 18 (2010) 13 SCC 657 19 (1975) 3 SCC 21920 (2006) 9 SCC 731 21(2008) 5 SCC 53522 (2009) 10 SCC 206 23 (2010) 9 SCC 189Page 16 16 are substantial and compelling circumstances, the order of acquittal is not required to be reversed in appeal. Similar view has been reiterated in Ranjitham v. Basvaraj & Ors.24 and State of Rajasthan v. Shera Ram @ Vishnu Dutta 25 .
28. Keeping in view the aforesaid well-settled principles, we are required to scrutinize whether the judgment of the High Court withstands the close scrutiny or conviction has been recorded because a different view can be taken. First we shall refer to the ante mortem injuries which were found on the deceased – (i) abrasion 5 cm x 1 cm over right ramus of jaw extending to the neck and (ii) abrasion 3 cm x 1 cm over left supra clavicular region. On internal examination, larynx, trachea and bronchi were found congested. Both the lungs were congested. Brain was congested. Partially digested food was found in the stomach. Small and large intestine were half full. The doctor who conducted the post mortem has opined that the cause of death was due to asphyxia as a result of throttling.
29. PW-6 Dr. S.R.P. Mishra had examined the accused and had found four contusions and two abrasions on his forehead, left ear, neck, left side chest and right shoulder. The learned trial 24 (2012) 1 SCC 414 25 (2012) 1 SCC 602Page 17 17 Judge has given some emphasis on these injuries but the High Court has expressed the view that when the accused was apprehended at the spot by the witnesses, he had been given a beating for the criminal act and hence, the minor injuries had no significance.
30. The question is whether the trial court was justified in coming to hold that there were discrepancies and contradictions in the evidence of the witnesses and, therefore, the case of the prosecution did not deserve acceptance. The discrepancies that have been found have been described while we have dealt with the trial court judgment. The medical report clearly says that the death was caused due to asphyxia as a result of throttling. PW-4, the surgeon, who has conducted the autopsy, stated that the deceased was wearing a shirt. PW-1, the father, has stated that she was strangulated by a bush shirt. The learned trial Judge has given much emphasis by drawing a distinction between a shirt and a bush shirt. The High Court has treated that it is not a material contradiction. In the FIR, it was clearly mentioned that the accused strangulated the deceased with the help of her shirt. The medical report supports the same and, therefore, the nature of the shirt which has been given importance by thePage 1818 learned trial Judge, in our considered opinion, has been rightly not accepted. The learned trial Judge has doubted the testimony of Ganeshi, PW-2, that he had not seen the children taking the bath and further he has also opined that it would not have been possible for the accused to lay upon the deceased in their presence. In this regard, the distance has been taken into consideration to discard the testimony. The High Court has perused the testimony or deposition of PW-2 wherefrom it is evincible that the spot was at the distance of 100 paces where he was grazing the cattle. The Investigating Officer has deposed that there was water in about half kilometre area as there was a crack in the canal as a consequence of which water was flowing in front of the house of the informant. Thus, the High Court has opined that the variance with regard to the details of distance cannot be made the edifice to discard their testimony. The High Court has treated Ganeshi as a natural and neutral witness and it has also observed that his evidence could not have been thrown overboard on the ground of absence of precise description of distance and the fact that he had not seen the children bathing in the water. That apart, the inference by the trial court is that when they had arrived on the scene, the accused could not have been laying onPage 1919 the deceased in their presence. On a perusal of his deposition as well as analysis made by the learned trial Judge, it is evident that there was some time gap and distance. The accused was laying on the deceased and throttled her neck with the shirt. The other witnesses had arrived after five to ten minutes. The High Court has taken note of the distance, time and the age of the deceased and has found that the reasoning ascribed by the trial court to disbelieve the version of PW-2 is unacceptable.
31. The learned trial Judge has noticed that both Pitambar and Ganeshi had deposed that they had seen blood on the spot, though the medical report clearly showed that there was no oozing of blood from any part of the body of the deceased and further that there was no injury on the private parts of the girl. It is apt to note here that there was some frothy liquid coming out from the nose of the deceased. The High Court, while analyzing the said evidence, has observed that the witnesses though had stated to have seen blood on the spot in their cross-examination, yet that would not really destroy the version of the prosecution regard being had to the many other facts which have been proven and further there was no justifiable reason to discard thePage 2020 testimony of the father and others who were eye witnesses to the occurrence.
32. The learned trial Judge has taken note of the fact that PW-1 had stated in his cross-examination that the underwear of the deceased was printed green in colour while PW-2 had stated that the colour of the underwear was red in colour and according to the recovery memo, the colour was red, white and yellow. The High Court has perused the memo, Ext. Ka2, prepared by the Investigating Officer wherein it has been described that the printed underwear was of red, white, yellow and black colour. That apart, when the witnesses were deposing almost after a span of three years, it was not expected of them to remember the exact colour of the printed underwear. In any case, the High Court has observed that the said discrepancy, by no stretch of imagination, could be treated as a discrepancy of any significance.
33. Another aspect which has weighed with the learned trial Judge was about the time of the lodging of the FIR. The said timing has no bearing on the case of the prosecution inasmuch as rustic and uneducated villagers could not have been precise on the time concept.
34. At this juncture, we may remind ourselves that it is the duty of the court to shift the chaff from the grain and find out the truth from the testimony of the witnesses. A testimony of the witness is required to inspire confidence. It must be creditworthy. In State of U.P. v. M.K. Anthony 26 , this Court has observed that in case of minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking the sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer and not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
35. In Rammi alias Rameshwar v. State of Madhya Pradesh 27, this Court has held as follows: - “24. When eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally 26 AIR 1985 SC 48 27 AIR 1999 SC 3544Page 2222 non-discrepant. But Courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.”
36. In Appabhai and another v. State of Gujarat 28 , this Court has ruled thus: - “The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such 28 AIR 1988 SC 696Page 23 23 witnesses altogether if they are otherwise trustworthy.”
37. Judged on the aforesaid principles of law, we are of the considered opinion that the learned trial Judge had given unnecessary importance on absolutely minor discrepancies which do not go to the root of the matter and the High Court has correctly treated the analysis to be perverse. Quite apart from that, it is noticeable from the judgment of the trial court that the learned trial Judge has proceeded on a wrong footing by saying that the case of the prosecution was that the accused had committed rape on the deceased whereas on a perusal of the FIR, it is quite clear that the allegation was that the accused has pulled the underwear of the girl with the intention to commit rape. Similar is the testimony of Ganeshi (PW-1) who has stated that the accused was laying on the girl. It is difficult to understand how the learned trial Judge has conceived that the case of the prosecution was that the accused had committed rape.
38. Thus, from the aforesaid analysis, there can be no trace of doubt that the view taken by the learned trial Judge was absolutely unreasonable, perverse and on total erroneousPage 2424 appreciation of evidence contrary to the settled principles of law. It can never be treated as a plausible view. In our considered opinion, only a singular view is possible that the accused had made an attempt to commit rape and he was witnessed while he was strangulating the child with a shirt. The result was that a nine year old child breathed her last. The reasoning ascribed by the learned trial Judge that she did not die because of any injury makes the decision more perverse rather than reasonable. That apart, nothing has been brought on record to show that there was any kind of enmity between the family of the deceased and that of the accused appellant. There is no reason why the father and the other witnesses would implicate the accused appellant in the crime and would spare the real culprit. Quite apart from the above, he was apprehended on the spot. The accused had taken the plea that the deceased had died as she had drowned in the water. The medical report runs absolutely contrary inasmuch there was no water in her stomach or in any internal part of the body. There was no motive on the part of any of the witnesses to falsely involve the accused in the crime. In view of our aforesaid analysis, we entirely agree with the view expressed by the High Court. Page 2525
39. Before parting with the case, we may note that the appellant has created a situation by which a nine year old girl who believed in him as a co-villager and went with him in total innocence breathed her last before she could get into her blossom of adolescence. Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one’s physical frame is his or her temple. No one has any right of encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu. The cry of the collective has to be answered and respected and that is what exactly the High Court has done by converting the decision of acquittal to that of conviction and imposed the sentence as per law.
40. Consequently, the appeal, being sans merit, stands dismissed.
..............................................J. [Dr. B. S. Chauhan]
..............................................J. [Dipak Misra]
New Delhi; May 29, 2012
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