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Criminal Appeal No. 36 of 1975, heard on 24th October, 1979.

-- S. 412 read with Income-tax Act (XI of 1922), S. 51 (2)-Plea of guilty, validity of-Prejudice-Complaint as well as charge merely mentioning undisclosed purchases but not showing any income suppressed by accused -Accused convicted on pleading guilty and thus no evidence led to show as to what income concealed by accused-Plea of guilt being in respect of offence, not sufficiently and correctly made out either in complaint or in substance of accusa tion, same, held, ineffective and conviction under S. 51 (2) of Income-tax Act not in accordance with law-Conviction and sentence set aside, in circumstances.

-- S. 412 read with Income-tax Act (XI of 1922), S. 52-Plea of guilty, effect of-Accused giving figures of purchases in his Statement of Income and verifying same although false and having sufficient notice of it in substance of -accusation pleading guilty to such charge-Conviction under S. 52 of Income-tax Act, held quite legal and no appeal could be filed in view of provi sions of S. 412, Cr. P. C., in circumstances.-[Appeal (criminal)].

Muhammad Hayat Junejo for Appellant.

Nemo for the State.

Date of hearing: 24th October, 1979

The appellant was convicted on 18th March, 1975 under section 51 (2) of the Income-tax Act. and sentenced to simple imprisonment for 3 months and he was further sentenced under section 52 of the Income-tax Act till rising of the Court and a fine of Rs. 1,000 or in default of payment of fine to suffer simple imprisonment for 3 months.

A complaint had been filed under sections 51 (2) and 52 of the Income -tax Act of 1922 by I. T. O. Circle II, East Zone, Karachi in the Court of Special Judge, Custom and Taxation, Karachi against the present appellant with the allegation that the accused bad concealed the purchases to the extent of Rs. 3,80,677 and had thereby been guilty of an offence of conceal ment, deliberately furnishing inadequate particulars, suppression of the items of receipts and the filing of the false verification in the Return of Income, which offences are punishable under sections 51 (2) and 52 of the Income-tax Act. On 18th March, 1975, the following substance of accusation was read over to the appellant:-

"It is alleged by the prosecution that you accused Nazar Muhammad Proprietor of Messrs Shaheen Motor Stores concealed your particulars lays of income and also verified your return for the year 1973-74 knowing it to be false one, as you accused showed your total purchases of Tyre and Tubes at Rs. 4,49,400 which on scrutiny was found to false one by the Department as it was established to the Depart ment that you had effected purchases at Rs. 8,30,077 and thus you suppressed the purchases to the extent of Rs. 3,80,677 and this you did in order to pay less tax. Thus you committed offences under sections 51 (2) and 52 of Income-tax Act within my cognizance. You are, therefore, called upon to show cause as to why you should not be convicted."

The accused did not plead guilty to the same and claimed to be tried. However, later on, on the same day the accused pleaded guilty to the charge and did not claim to be tried and pleaded for mercy. What happened in-between to make the appellant plead guilty to the charge is not explained. The appellant was therefore, convicted on the basis of the plea of guilty and sentenced.

Mr. Hayat Junejo, learned counsel for the appellant has contended that section 412, Cr. P. C. would not be applicable in this case as a bar to the filing of appeal as in respect of offences under section 51 (2) of the Income tax Act the plea of guilty could not be considered to be effective because the substance of accusation, which was read out to the appellant did not specify any concealment of income, but only charged that he had concealed purchases of Rs. 3,00,000 while under section 51 (2) of Income-tax Act the offence punishable is only the concealment of income. It was argued that purchases' are different from income' as a person may not be able to derive any income in respect of purchases made by him. The submission, therefore, is that the charge was incorrect and not in accordance with section 51 (2) of Income-tax Act. Mr. Hayat Junejo submits that this defective charge could not be cured under section 537 of Cr. P. C. as no evidence had been led in the case at all so that lack of prejudice could be considered.

I do find that the offence under section 51 (2) of Income-tax Act is the concealment of the income and not the concealment of purchases although it could be argued that the purchases could not be made without the proportionate income having been earned by the assessee, yet an answer, could be that the purchases had been financed by some other source and not through the concealed income. The purchases and income axe two different things and it could be possible that a man may not earn an income in spite of the purchases that he had made as he may sell the goods at a loss and thus sustain a loss. Therefore, the net result is that a charge in respect of undisclosed purchases cannot be regarded as a charge in respect of concealed income. It is, therefore, obvious that the charge under section 51(2) was not in accordance with law as it was not specified as to what income had been concealed by the appellant and since no evidence has been led in the case, therefore, it could not be argued that the appellant had sufficient notice of the allegation of concealment of income and has not thereby been prejudiced. Even, the complaint mentions only the undisclosed purchases and does not show as to what income had been suppressed by the appellant. If the evidence had been led in respect of suppression of income and the particulars of suppression of income had been mentioned in the complaint then it could be argued that no prejudice had been caused to the appellant by non-framing of charge in respect of concealment of income, But in this case the charge and the complaint being. against merely the suppression of the figures of purchases without showing the relevant income and no evidence had been led, therefor, I find that plea of guilt was in respect of an offence, which had not been sufficiently and correctly made out either in the complaint or in the substance of accusation, therefore, the plea of guilt was ineffective and consequently the conviction under section 51 (2) of the Income-tax Act was not in accordance with law and is hereby set aside. It would be however, open to the department to file a fresh prosecution against the appellant under section 51 (2) if they so deem fit and file a proper complaint for the same.

However, in respect of offence under section 52 of the Income-tax Act, I do not find the same objection to be sustainable, and I find that since the appellant had given figures of purchase in his statement of income and had verified the same and the same has been found to be false and the appellant had sufficient notice of the same in the substance of accusation B and had pleaded guilty to the same, therefore, the plea of guilt in this case was valid and effective and the conviction under section 52 of the Income-tax Act was quite legal and justified and in view of the provision of section 412, Cr. P. C. no appeal could be filed in respect of conviction under section 52 of the Income-tax Act.

Therefore, the appeal against the conviction of the appellant under section 52 of the Income-tax Act is hereby dismissed.

Appeal dismissed.

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