1983 PLP 46 (PTD)

4. In his statement Exh. 4, the appellant stated, that he filed his Return of Income Exh. 2-A for 1971-72, that the Income-tax Department seized his books of accounts Exhs.2/B-1 to 2/B-8. In respect of suppression of purchases, the appellant explained, that there were certain items of goods, which the people kept for sale at his shop and that if those articles were not sold, the same were returned to their respective owners and that such goods were not mentioned in the accounts books. Appellant alleged, that certain 1Lcome-tax Officer had purchased from him a refrigerator, which belonged to some body else, for Rs. 7,

000. That he demanded price of the same from the I T. O., who gave him threats for implication in a false case. In his defence, the appellant examined D. Ws. Rafiq Ahmad Exh. 5 an Abrar Hussain Exh. 6 and closed his side vide Exh. 7.

5. The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant above-named, as hereinbefore mentioned and consequently the appellant has filed the above appeal,

6. The learned Advocate for the appellant in support of the above appeal submitted as under:- (a) That this is a case of no evidence at all and consequently the accounts books produced in evidence cannot be made bass of the conviction of the appellant, as the said accounts books could only be used for purposes of corroboration. In support of this contention the learned Advocate for the appellant relied upon the cases reported in 1969 S C M R 898, P L D 1967 Dacca 1049, P L D 1968 Kar. 36 and 1969 S C M R 898. (b) That P. W. Maqsood was not scribe of the accounts books in question and in the absence of such scribe being examined, the accounts books in question cannot be used as substantive evidence. (c) The offence alleged to have been committed by the appellant could result in penal punishment and as such law laid down in 1971 P T D 457 and 1970 P T D 576 are applicable to the appellant's caste and con sequently the conviction of the appellant cannot be maintained. (d) That the method of accounting under section 13 of the Income-tax Act has not been prescribed for private individuals doing business and as such the manner in which the appellant maintained the accounts books could not be formed as basis for his conviction. (e) That non-discloser of certain purchases or sales by itself does not prove concealment of profits, as conception of income under the Income-tax Law is completely different, as it is just possible, that the sales affected by the appellant could be at loss and as such unless prosecution actually establishes concealed profits no offence at all could be made out under the provision of section 51 of the Income-tax Act and in the present case the prosecution has failed to lead any evidence specifying the actual amount of profits alleged to have been concealed by the appellant and as such has failed to establish the alleged offence against the appellant, beyond reasonable doubt.

7. The learned Advocate appearing for the State on the other hand submitted, that in view of the law laid down in the cases reported in 1971 P T D 457 and 1970 P T D 576, and in view of the fact, that the section 34 of the Evidence Act is applicable to the proceedings against the appellant, he does not support the impugned judgment.

8. I have carefully considered the above submissions made by the learned Advocates before me and I have also gone through the R & P of the learned trial Court as well as the impugned judgment and the cases cited by the learned Advocates before me.

9. I find great force in the contentions raised before me by the learned Advocate for the appellant, as in present case prosecution did not produce any evidence to establish the exact alleged income concealed by the appellant and/or inaccurate particulars of such income, so as to attract the provision of section 51(2) of the Income-tax Act, 1922. Mere production of account books and mere absence of certain entries therein, does not establish, that appellant in fact concealed airy income and/or gave inaccurate particulars in respect thereof. This conclusion of mine is fully supported by the cases cited by the learned Advocate for the appellant as well as by the State counsel. It may further be noted, that no method for accounting in respect of the business of appellant has been prescribed under section 13 of the Income-tax Act, 1922, and consequently the method adopted by the appellant, in view of his statement under section 342, Cr. P. C., it was not acceptable to Income Tax officer, the said Officer had authority to compute the income of appellant as it may tic deemed fit by the said Income-tax Officer. I find that income tax Offices rejected appellants account books and proceeded to assess him under section 13, Proviso

1. Mere rejection of account books, in the absence of positive and direct evidence to establish the exact income concealed by the appellant, in my opinion would not attract provisions of section 51(2) of the, income-tax Act, 1922. This view of mine is supported by the cases reported in 1971 P T D 457 and 1970 P T D 576, with which I am in respectful agreement, for reasons given in the said judgments.

10. In view of my above conclusions and observations prosecution ha failed to establish its case against the appellant beyond reasonable doubt.

11. Therefore I allow the above appeal and set aside conviction of the appellant and sentences awarded to him, and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant. Appeal allowed.