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In the present case, pursuant to the directions of the, Tribunal, Delhi Bench, the Income tax Officer determined the assessee 's capital gains under section 12 B of the Act; but the Income tax Officer did not make any order under section 23(3) of the Act, nor (1957) 31/.T.R. 643. Ratio |
549 did he issue a regular notice of demand as prescribed under section 29 of the Act. Ratio |
The result was, no appeal lay against the computation made by the Income tax Officer to the Appellate Assistant Commissioner. Ratio |
Indeed, on March 8, 1957, the Appellate Assistant Commissioner rejected the appeal filed by the appellant as being not maintainable. Ratio |
As no appeal lay to the Appellate Assistant Commissioner against the calculations made by the Income tax Officer, the Commissioner had certainly power to revise the said order. Ratio |
On March 5, 1956, the appellant flied an application requesting the Income tax Officer to issue a notice of demand as required by section 29 of the Act. Ratio |
But the said Officer declined to issue the notice of demand. Ratio |
The question is whether he was bound to issue a notice of demand under section 29 of the Act. Ratio |
Section 29 of the Act reads: "When any tax, penalty or interest is due in consequence of any order passed under or in pursuance of this Act, the Income tax Officer shall serve upon the assessee or other person liable to pay such tax, penalty or interest a notice of demand in the prescribed form specifying the sum so pa... |
Under this section, if a tax is due in consequence of an order from an assessee, the Income tax Officer is under a duty to serve on him a notice of demand. Ratio |
Pursuant to the directions given by the Tribunal the Income tax Officer made fresh calculations under the head 'capital gains ' and ascertained the amount due from the assessee. Ratio |
In the circumstances, pursuant to the said calculation, he should have passed an order and issued a notice of demand to the assessee. Ratio |
In not doing so, it must be held that the Income tax Officer did not discharge his duty which he was bound to do under the Act; with the result he had become amenable to a writ of mandamus directing him to do what he should have done under the ,Act. Ratio |
In the result, the order of the High Court is set aside and we issue a writ of certiorari quashing the order of the Commissioner and a writ of mandarnus directing the Income tax Officer to pass an order and issue a notice in accordance with law. Ratio |
The appellant will have his costs throughout. RPC |
Appeal allowed. RPC |
This Appeal is by Special leave against the Judgment of the High Court of Punjab and Haryana confirming the conviction of the accused under Section 5(1)(c) of the Prevention of Corruption Act 1947 as also the sentence awarded by the Sessions Judge of one year's Rigorous Imprisonment and a fine of Rs Ratio |
2500, in default six months Rigorous Imprisonment Ratio |
The facts of the case in brief are that in view of the Chinese invasion Air Field at Sirsa required to be extended for which purpose the Ministry of Defence, Govt FAC |
of India took steps to acquire some lands of agriculturists pursuant to which a Notification dated November 27, 1962 was issued under Section 4 of the Land Acquisition Act 1894 for acquiring 51.79 acres of land situated in the State of Ahmedpur FAC |
On the next day another Notification was issued under Section 6 of the Land Acquisition Act on November 28, 1962 and in view of the emergency action under Section 17 was taken for obtaining possession of the land With a view to its development FAC |
The lands which were acquired belonged to several land holders including Moti Ram and P.W. 12 Kewal Chand FAC |
The Collector gave his award on 26-2-63 in respect of these lands, which actually measured 49.47 acres, at Rs FAC |
1350 per acre amounting to Rs FAC |
66,784.50 np FAC |
Apart from this amount compensation was also awarded for standing crop amounting to Rs FAC |
11,073.13 FAC |
np FAC |
Before the land was actually acquired the Appellant who was a Major in the Military Engineering-Service was working as a Garrison Engineer and was inching of the extension ARG |
He had in anticipation of acquisition and execution of the work appointed A. B. Ranadive, P.W. 14 as Assistant Garrison Engineer who was to be responsible, for all the matters connected with the acquisition of land, demarcation of boundaries as an Engineer Inching for execution of the contract and responsible for the m... |
The work of the extension of aerodynamic was entrusted to one Telu Ram, P.W. 8 Contractor, with whom the trusted to M.E.S. Department entered into an agreement on December 3, 1962 ARG |
This agreement was signed both by the Appellant and P.W. 14 ARG |
The work according to that agreement was to be done in 2 phases-first phase was to commence on 10th January 1963 and was to be completed by 9th October 1963 ARG |
After the completion of the first phase the second phase was to start on 10th October 1963 and completed by 9th May 1964 ARG |
Pursuant to this agreement it is said that -symbolic possession of the land which was acquired was taken over by the Tehsildar on 1st February 1963, after which at any rate it appears from Ex ARG |
P. 24 that actual possession of this land was handed over by the said Tehsildar on 13th ARG |
February 1963 to the appellant ARG |
The receipt Ex.P.24 ARG |
24 bears the signature of N. L. Handa, the Tehsildar and of Sukhchain Lal jain, P.W. 11 on behalf of the Military Estate Officer and the Appellant ARG |
From this receipt it is evident that possession of 50.12 acres was handed over by the Tehsildar and taken over by the Appellant and the Military Estate Officer Sukhchain Lal Jain ARG |
The case of the prosecution initially was that after the land so acquired with the standing crop was taken possession of by the Appellant FAC |
he sold the crop to Moti Ram and Kewal Chand for Rs FAC |
2500 and facilitated the cutting and taking away of the crop by postponing the handing over of the possession to the contractor till the 5th April 1963 and misappropriated the money FAC |
In respect of this allegation the First Information Report (Ex. P. 29) was issued on 14-1-64 in which the following statement is relevant FAC |
It is alleged that Major Som Nath accused who is a Garrison Engineer Sirsa Air Field subsequently sometime in the months of March and April 1963 permitted the removal of the standing crop valued at Rs FAC |
11073-13 by Shri Moti Ram and Kewal Chand etc FAC |
after, accepting illegal gratification of Rs. 3000 from them FAC |
Major Som Nath did not account for this amount in the Govt FAC |
Revenues FAC |
He thus. abused his position as a public servant and caused pecuniary advantage to said Shri Moti Ram and Kewal Chand by giving them standing crops worth Rs FAC |
13,000 for a consideration of FAC |
Rs FAC |
3,000 only, which amount he accepted for his personal use and thereby also abused his official position and obtained pecuniary advantage, for himself in a sum of Rs FAC |
The facts disclose the commission of the offence of criminal misconduct as defined in Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act 1947 by Major Som Nath accused STA |
A regular case, is therefore registered and entrusted to Inspector Baldev Rai Handa for investigation FAC |
After this F.I.R. certain statements were recorded by the Military authorities being DA to DE,DM, DM/ 1, DN & DL of Mani gain, Mulkh, Raj, Ganpat Ram, Telu Ram, Kewal Chand and Sukhchain Lal Jain FAC |
A chargesheet was filed against the Appellant under Section 5 (1) (c) and 5 (1) (d) read with 5 (2) of the Prevention of Corruption Act on 5-8-1966 after obtaining sanction from the Govt FAC |
of India, Ministry of Home Affairs on llth April, 1966 as per Ex. P.23 FAC |
The Special Judge acquitted the Appellant of the second charge namely that being a public servant he had by corrupt or illegal means or by otherwise abusing his position as a public servant obtained for himself a sum of Rs RLC |
2,500 from Moti Ram of Sirsa for cutting the crops and thereby committed ,offence under Section 5(1)(d) punishable under Section 5(2 RLC |
The accused was however convicted under the first charge for an offence under Section 5(1)(c) in that he being a Garrison Engineer incharge of the Air Field FAC |
Sirsa and in that capacity entrusted with standing crops of Sarson, Gram and Lusan on 30 acres of land a part of 49 acres of land acquired by the Govt FAC |
and which had been valued at Rs FAC |
11,073.13 by the Revenue authorities, dishonestly or fraudulently allowed Moti Ram of Sirsa to misappropriate the said standing crop and thereby contravened Section 5(1)(c) of the Prevention of Corruption Act punishable with Section 5(2) of that Act FAC |
Against that conviction and sentence he -appealed to the High Court which maintained the conviction and sentence FAC |
The learned Advocate for the Appellant has meticulously taken us through the entire documentary and oral evidence and commented at length upon the various contradictions and incongruities in the case of the prosecution with a view to establishing that when the Appellant took possession of the land there was no crop sta... |
It was also contended that the High Court had not considered the contradictions in the earlier statement made by some of the witnesses to the Military authorities and that it relied on many of the documents for affirming the conviction of the Appellant without their actually being put to, him under Section 342 ARG |
Before we consider these contentions it is necessary to determine another submission of the learned Advocate for the Appellant which goes to the root of the jurisdiction of the Court to try the offence, under Section 5(1)(c Ratio |
If this contention is valid then the conviction of the accused cannot stand and therefore it is necessary to deal with this matter first Ratio |
It may be mentioned that though a complaint was made in the application for a certificate for leave to appeal to this Court that the learned Single Judge of the High Court should have acquitted the Appellant on the sole ground that there was no proper sanction for the prosecution of the Appellant under Section 5(1) (c)... |
In any case we do not think that there is any validity in the submission Ratio |
that the sanction given by the Govt Ratio |
of India does not cover the trial of the charge under Section 5(1)(c) of the Prevention of Corruption Act Ratio |
For a sanction to be valid it must be established that the sanction was given in respect of the facts constituting the offence with which the accused is proposed to be charged Ratio |
Though it is desirable that the facts should be referred to in the sanction itself, nonetheless if they do not appear on the face of it, the prosecution must establish aliunde by evidence that those facts were placed before the sanctioning authorities Ratio |
It is therefore necessary to first examine the order of sanction to ascertain on what facts it has been accorded Ratio |
The sanction that has been accorded is in the following terms: 11th April 1966 FAC |
Whereas it is alleged that Major Som Nath...... while functioning as Garrison Engineer, M.E.S., Air Field at Sirsa from 13-2-63 to 54-1963 by corrupt or illegal means or by otherwise abusing his position, as such public servant, obtained pecuniary advantage of Rs FAC |
2500 for allowing the standing crops to be cut from the land acquired for the extension of Air Field FAC |
Sirsa; and or he dishonestly or fraudulently realised and misappropriated Rs FAC |
2500 during the aforesaid period as the value of the crops cut from the land acquired for the extension of Air Field FAC |
Sirsa, which crops had been entrusted to him as a public servant and he instead of depositing the said sale price into the Govt FAC |
Treasury converted it to his own use; And whereas the said acts of Major Som Nath.. constituted offences punishable under Section 5(2) of the Prevention of Corruption Act, read With Section 5 (1) (c) and (d FAC |
Act No. 11 of 1947) of the said Act and Section 409 of the I.P.C FAC |
And whereas the Central Govt FAC |
after fully and carefully examining the materials before it in regard to the said allegations and circumstances of the case, consider that Major Som Nath...... should be prosecuted in a court of law for the said offences FAC |
Now therefore, the Central Govt both hereby accord sanction under Section 197-Code of Criminal Procedure (Act No. 5 of 1898) and Section 6(1)(a) of the Prevention of Corruption Act, 1947 (Act II of 1947) for the prosecution of Maj FAC |
Som Nath for the said offences and for any other offences punishable under the provision of law in respect of the aforesaid acts by the Court of competent jurisdiction FAC |
By order and in the name of the President. Sd/- (A. P. Veera Raghavan FAC |
Deputy Secretary to the Govt FAC |
of India FAC |
From the above order it is apparent that the facts which the Central Govt Ratio |
considered for the purposes of according sanction were (a) that the Appellant as a public servant was entrusted with crops situated on the land acquired for the extension of Air Field, Sirsa ; (b) that by abusing his position as a public servant he allowed the standing crops to be cut from the said land Ratio |
c Ratio |
that by corrupt or illegal means and by abusing his position as a public servant he obtained pecuniary advantage Of Rs Ratio |
2500 as the value of the crops to be cut from the land and/or he dishonestly or fraudulently misappropriated that sum by converting it into his own use instead of depositing the said sale price in the Govt Ratio |
Treasury Ratio |
On these facts and after applying its mind as spoken to by P.W. 10 Kalra the Government accorded its, sanction for prosecution of the offences punishable under Section 5(2) read with Section 5(1)(c) and 5(1)(d STA |
The question therefore Would be whether these facts were sufficient to sustain the sanction under 5(1)(c) even if the charge under 5(1)(d) had failed Ratio |
This question in turnwill depend upon what are the ingredients of the offences under 5(1)(c) and (d) read with Section 5(2 Ratio |
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