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IN THE COURT OF Ms.

GOMTI MANOCHA, LD ACMM


(SPL ACT), TIS HAZARI COURT, NEW DELHI
CC. No. 295277/2016
In the matter of:
M/s ITO … Complainant
Versus
M/s Style Syntax Pvt Ltd … Accused

NDOH:11.09.2017
INDEX
S.No. Particulars Page
1. Application under section 311 of the Code of
Criminal Procedure, 1973 for Summoning Court
Clerk/Court Officer to prove Certified Copies of
order dated 25.07.2008 and 19.06.2017 passed by the
Hon’ble Income Tax Appellate Tribunal (I. T.A.T.),
New Delhi and also to Registrar of Company, New
Delhi to prove Roc Documents as Annexed in
statement of 313 CrPC of AR for Accused No 1.
2. Annexure A
Certified Copy of Form 18 for Change of Company
Address of Accused No 1, M/s Style Syntax Pvt Ltd
3. Annexure B
The Certified Copy of order dated 25.07.2008
passed by the Hon’ble Income Tax Appellate
Tribunal (I. T.A.T.), New Delhi.
4. Annexure C
The Certified Copy of Form No 32 for Resignation
from the post of Directors by Accused No 2 and 3
in Accused No 1, M/s Style Syntax Pvt Ltd
5. Annexure D
Certified copy of order dated 19.06.2017 the
Hon’ble Income Tax Appellate Tribunal (I.T.A.T.),
New Delhi.
Applicant
Delhi
Dated: Through
Counsel
IN THE COURT OF Ms. GOMTI MANOCHA, LD ACMM
(SPL ACT), TIS HAZARI COURT, NEW DELHI
CC. No. CC. No. 295277/2016
In the matter of:
ITO … Complainant
Versus
M/s Style Syntax Pvt Ltd … Accused

NDOH:11.09.2017

APPLICATION UNDER SECTION 311 OF THE CODE OF


CRIMINAL PROCEDURE, 1973 FOR SUMMONING COURT
CLERK/COURT OFFICER TO PROVE CERTIFIED COPIES
OF ORDER DATED 25.07.2008 AND 19.06.2017 PASSED BY
THE HON’BLE INCOME TAX APPELLATE TRIBUNAL
(I.T.A.T.), NEW DELHI AND ALSO TO REGISTRAR OF
COMPANY, NEW DELHI TO PROVE FORM 18 AND FORM 32
AS ANNEXED BY AR FOR ACCUSED NO 1 AND BY
ACCUSED NO 2.

RESPECTFULLY SHOWETH
1. That the present matter is pending before this Hon’ble Court.
2. That the present case is initiated on the basis of complaint filed by
the Deputy Commissioner of Income-Tax against the accused
persons, for the assessment year 2002-2003.
3. The main trust of the allegations against the accused persons in the
complaint are as follows:
a. The Assessee (Accused No. 1) filed a return of income
(Ex PW 1/4) under Section 115 JB declaring NIL
income on 31.10.02 (@ Para No. 2 of the Complaint),
pursuant to which, notice under Section 143 (2) (Ex PW
2/1) was issued on 27.05.2003, which allegedly remained
uncomplied. Another notice (Ex PW 1/5) with
questionnaire was issued on 25.11.2004, which allegedly
again remained uncomplied with. (@ Para No. 3 of the
Complaint)
b. Accordingly, it is stated that a Show Cause Notice
(hereinafter referred to as “SCN”) dated 23.02.2005 (Ex
PW 2/2) under Section 144 of the Income Tax Act, was
issued, which allegedly again remained uncomplied with.
(@ Para No. 3 of the Complaint)
c. Thereafter, the Assessing Officer (CW-2 Sh. P. K.
Singh)completed the assessment ex-parte vide order dated
22.03.2005 (Ex PW 2/4) at total income of ₹
18,43,480/-. (@ Para No. 4 of the Complaint)
d. In the Complaint, it is also mentioned that a Complaint
against the said order dated 29.03.2005 was filed,
however, the CIT Appeal III vide order dated 16.11.2006
(Ex PW 1/6) dismissed the same. (@ Para No. 4 of the
Complaint).
e. Subsequent thereto, penalty of ₹ 8,75,035 was imposed
by the Assessing Officer (CW-2 Sh. P. K. Singh) vide
order dated 24.03.2007 (Ex PW 1/7), and accordingly,
notice under Section 156 of the Income Tax Act was
issued, but Assessee (Accused No. 1) failed to deposit the
taxes due, and thus, notice (Ex PW 1/8) under Section
221 of the Act was issued to deposit the outstanding
amount of ₹ 10,85,043.(@ Para No. 5 of the
Complaint).
f. In view of the same, the Complainant (CW-1 Ms. Sujata
Maitra) alleges commission of various offences under the
Income Tax Act. (@ Para No. 6 of the Complaint).
4. That, the complaint is filed in relation to the Assessment Year
2002-03, and the complainant has based the whole complaint on
the basis of Assessment Order dated 22.03.2005, wherein main
additions made were:
A. Disallowance of 10% of expenses claimed in the
P&L Account and
B. Disallowance of other deduction/exemption/
benefit.
a. As regards 10% of expenses claimed in the P&L
Account, the grounds for disallowance mentioned are:
A. Expenses claimed in the profit & loss account
are not justified and
B. No documentary evidence submitted to justify
the claim of these expenditures.
b. As regards other benefits, the grounds for disallowance
mentioned are:
A. Decline in percentage of gross profit from
13.05% to 11.85% not justified.
On the basis of the above, the complainant has filed the
present complaint.
5. Accused No. 2 and 3 have been arrayed in as accused on the basis
of the allegation that they are in-charge and Directors who are
responsible for the affairs of Accused No. 1 and are liable for
offences under the Act, as alleged.
6. The Complainant in support of its case has examined two
witnesses, that is, PW-1 to PW-2, who have been cross-examined
by the accused persons during both the pre-charge stage and post-
charge stage in the matter. The details of the witnesses examined
are as follows:
 PW-1 Smt. Sujata Maitra – She is the complainant in the
matter and
 PW-2 Sh. P K Singh - He is the assessing officer who had
passed the assessment order dated 22.03.2005.
7. That on 15.03.2016, Statement u/s 313 CrPC of Authorized
Representative (AR) for Accused No 1 M/s Style Syntex Pvt Ltd,
Sh Avdesh Chaturvedi was recorded in which he said that no
notice was received by the Accused Company as the Address on
which the Prosecution was sending notices to the Accused
Company, was incorrect but the last notice which the Prosecution
sent on 25.11.2004 was on a correct address but before that on
07.10.2004, the new directors of the company had already changed
the Address of the Company. So none of the notice was received
by the Accused Company.
To prove the same Form No 18 had already been placed by the AR
of Accused No 1 in his 313. The Certified Copy of the same is
annexed herein as Annexure A.
8. That AR of Accused No 1 M/s Style Syntex Ltd also stated in his
313 that subsequent to the Assessment Order (Ex PW 2/4), the
same was challenged before the CIT, which challenged was
dismissed vide order dated 16.11.2006. However, it is submitted
that the said order (Ex PW 2/4) was subsequently set-aside vide
order dated 25.07.2008 passed by the Hon’ble Income Tax
Appellate Tribunal (I. T.A.T.), New Delhi, whereby directions
were issued to the Assessment Officer to make fresh orders. The
certified copy of the said order has been placed on record.
The certified copy of the order dated 25.07.2008 is annexed
herewith and marked as Annexure-B.

9. That, the Complainant was not even aware as to what had


happened to the said orders and what subsequent orders were
passed. The above is clear from the cross-examination of PW-1
dated 30.11.2015, relevant portion of which is reproduced herein
below:
“I am not aware as to what
happened after dismissal of appeal
by CIT appeal vide order dated
16.11.2006. I am not aware as to
whether the assessment order was
set aside or was remanded back or
what happened after that. As I am
not aware of the same, I cannot comment on
any development thereafter. I did not make
any effort to find out about the same as I was
not required to do so.”
10. The fallacy in the prosecution case is brought on record by way of
the subsequent orders passed in relation to the Assessment of the
Accused No. 1 Company. It is clear that the assessment order was
passed in respect of the two items, that is, one is expenses and
other is on Gross Profit, however, the penalty under both the two
has been set-aside.
11. That the Complainant in the Complaint has referred to the passing
of the CIT Appeal, however, the prosecution has deliberately
concealed from this Hon’ble Court the result of the said orders in
the Higher forums.
12. That on 15.03.2016 in Statement u/s 313 CrPC of Accused No 2
Sh Amit Chaturvedi, annexed Form 32 on record regarding his
resignation of Directorship of Accused No 2 and Accused No 3
from Accused No 1 M/s Style Syntex Pvt Ltd w.e.f. 27.09.2004
and had no concern at the time when Assessment Order dated
22.03.2005 was issued against the Accused Company M/s Style
Syntex Pvt Ltd. The Certified of the Form 32 is annexed herein
and marked as Annexure-C.
13. Form 32 uploaded with ROC is to be considered as genuine –
That, Section 610 sub-section (3) of the Companies Act, 1956
states as hereunder:

(3) A copy of, or extract from,


any document kept and registered at
any of the offices for the registration of
companies under this Act, certified to
be a true copy under the hand of the
Registrar (whose official position it
shall not be necessary to prove), shall,
in all legal proceedings, be admissible
in evidence as of equal validity with the
original document.

Thus, documents from the ROC showing the Board of Directors


at the relevant period must be presumed to be correct and are
unimpeachable documents.

14. That, the Authorized Representative (AR) for Accused No 1 M/s


Style Syntex Pvt Ltd, Sh Avdesh Chaturvedi and Accused No 2
were in impression that the above said annexure are to be read in
evidence only. Further to it he realized that proving the said
documents is also compulsory.
15. Subsequent to passing of the said order dated 25.07.2008, a fresh
Assessment Order was passed on the basis of estimates. Thereafter,
ultimately, penalty under Section 271 (1) (c) of the Income Tax Act
was imposed. The same was finally set-aside by the Income Tax
Appellate Tribunal vide its order dated 19.06.2017. The certified
copy of the order dated 19.06.2017 is annexed herewith and
marked as Annexure-D.
16. That A question may arise as to whether can the above said two
orders, certified copies of which have been placed on record, can
be taken into consideration by this Hon’ble Court. The answer to
the same lies in Section 74 and 79 of the Indian Evidence Act,
which incorporates a presumption as to genuineness of Certified
Copies.
17. That at the outset, it is submitted that the whole case of the
Complainant is based on the Assessment Order dated 22.03.2005,
which has been aside vide order dated 25.07.2008 by the Hon’ble
Income Tax Appellate Tribunal (I. T.A.T.), New Delhi and also
the Penalty regarding concealment of facts imposed on us have
been waived off by the Hon’ble Income Tax Appellate Tribunal (I.
T.A.T.), New Delhi in their order dated 19.06.2017.
18. That in view of the above present application is moved by the
Accused for Summoning Court Clerk/Court Officer to prove
Certified copies of order dated 25.07.2008 and 19.06.2017 passed
by the Hon’ble Income Tax Appellate Tribunal (I.T.A.T.), New
Delhi and also to Registrar of Company, New Delhi to prove Form
18 and Form 32 and to put light and consider the present facts of
the case to this Hon’ble Court.
19. That the applicant cannot be made to suffer on account of non
availability of the documents. The denial of an opportunity to lead
this evidence on record shall result into serious miscarriage of
justice.
20. That the only consideration for the purpose of disposal of the
present application is that the evidence proposed to be adduced is
relevant or not. Reliance is placed upon Natasha Singh V Central
Bureau of investigation reported (2013)5 SCC741 which reads:
"14. The scope and object of the provision is to enable
the Court to determine the truth and to render a just
decision after discovering all relevant facts and obtaining
proper proof of such facts, to arrive at a just decision of
the case. Power must be exercised judiciously and not
capriciously or arbitrarily, as any improper or capricious
exercise of such power may lead to undesirable results.
An application under Section 311 Cr.P.C. must not be
allowed only to fill up a lacuna in the case of the
prosecution, or of the defence, or to the disadvantage of
the accused, or to cause serious prejudice to the defence of
the accused, or to give an unfair advantage to the
opposite party. Further the additional evidence must not
be received as a disguise for retrial, or to change the
nature of the case against either of the parties. Such a
power must be exercised, provided that the evidence that
is likely to be tendered by a witness, is germane to the
issue involved. An opportunity of rebuttal however, must
be given to the other party.
The power conferred under Section 311 Cr.P.C. must,
therefore, be invoked by the Court only in order to meet
the ends of justice, for strong and valid reasons, and the
same must be exercised with great caution and
circumspection.
The very use of words such as 'any Court', 'at any
stage', or 'or any enquiry', trial or other proceedings',
'any person' and 'any such person' clearly spells out that
the provisions of this section have been expressed in the
widest possible terms, and do not limit the discretion of
the Court in any way. There is thus no escape if the
fresh evidence to be obtained is essential to the just
decision of the case. The determinative factor should,
'therefore, be whether the summoning/recalling of the
said witness is in fact, essential: to the just decision of the
case.
15. Fair trial is the main object of criminal procedure
and it is the duty of the court to ensure that such fairness
is not hampered or threatened in any manner. Fair trial
entails the interests of the accused, the victim and of the
society, and therefore, fair trial includes the grant of fair
and proper opportunities to the person concerned, and the
same must be ensured as this is a constitutional, as well
as a human right. Thus, under no circumstances can a
person's right to fair trial be jeopardized. Adducing
evidence in support of the defence is a valuable right.
Denial of such right would amount to the denial of a
fair trial. Thus, it is essential that the rules of procedure
that have been designed to ensure justice are scrupulously
followed, and the court must be zealous in ensuring that
there is no breach of the same. (Vide Talab Haji
Hussain v. Madhukar Purshottam Mondkar & Anr.,
AIR 1958 SC 376; Zahira Habibulla H. Sheikh &
Anr. v. State of Gujarat & Ors. AIR 2004 SC
3114; Zahira Habibullah Sheikh & Anr. v. State of
Gujarat & Ors., AIR 2006 SC1367; Kalyani
Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2
SCC 258; Vijay Kumar v. State of U.P.& Anr.,
(2011) 8 SCC 136; and Sudevanand v. State through
C. B.I. (2012) 3 SCC 387.)”

21. SECTION 311 CR.P.C. SHOULD ENSURE THAT THE


JUDGMENT SHOULD NOT BE RENDERED ON
INCHOATE, INCONCLUSIVE SPECULATIVE
PRESENTATION OF FACTS, AS THEREBY THE ENDS
OF JUSTICE WOULD BE DEFEATED.
That the evidence sought to be placed on record is important to
the case. Relying upon Natasha Singh (supra) Hon’ble Supreme
Court in Rajaram Prasad Yadav V State of Bihar (SLP(Crl) 2400
of 2011- decided on 04.07.2013) has laid down the principles for
considering application under section 311 Cr.P.C which reads:
“23. From a conspectus consideration of the above
decisions, while dealing with an application under Section
311 Cr.P.C. read along with Section 138 of the
Evidence Act, we feel the following principles will have to
be borne in mind by the Courts:
a) Whether the Court is right in thinking that the
new evidence is needed by it? Whether the evidence
sought to be led in under Section 311 is noted by the
Court for a just decision of a case?
b) The exercise of the widest discretionary power
under Section 311 Cr.P.C. should ensure that the
judgment should not be rendered on inchoate,
inconclusive speculative presentation of facts, as
thereby the ends of justice would be defeated.
c) If evidence of any witness appears to the Court to
be essential to the just decision of the case, it is the
power of the Court to summon and examine or recall
and re-examine any such person.
d) The exercise of power under Section 311 Cr.P.C.
should be resorted to only with the object of finding
out the truth or obtaining proper proof for such facts,
which will lead to a just and correct decision of the
case.
e) The exercise of the said power cannot be dubbed as
filling in a lacuna in a prosecution case, unless the
facts and circumstances of the case make it apparent
that the exercise of power by the Court would result
in causing serious prejudice to the accused, resulting in
miscarriage of justice.
f) The wide discretionary power should be exercised
judiciously and not arbitrarily.
g) The Court must satisfy itself that it was in every
respect essential to examine such a witness or to recall
him for further examination in order to arrive at a
just decision of the case.
h) The object of Section 311 Cr.P.C. simultaneously
imposes a duty on the Court to determine the truth
and to render a just decision.
i) The Court arrives at the conclusion that additional
evidence is necessary, not because it would be
impossible to pronounce the judgment without it, but
because there would be a failure of justice without
such evidence being considered.
j) Exigency of the situation, fair play and good sense
should be the safe guard, while exercising the
discretion. The Court should bear in mind that no
party in a trial can be foreclosed from correcting errors
and that if proper evidence was not adduced or a
relevant material was not brought on record due to
any inadvertence, the Court should be magnanimous
in permitting such mistakes to be rectified.
k) The Court should be conscious of the position that
after all the trial is basically for the prisoners and the
Court should afford ·an opportunity to them in the
fairest manner possible. In that parity of reasoning, it
would be safe to err in favour of the accused getting an
opportunity rather than protecting the prosecution
against possible prejudice at the cost of the accused.
The Court should bear in mind that improper or
capricious exercise of such a discretionary power, may
lead to undesirable results.
I) The additional evidence must not be received as a
disguise or to change the nature of the case against
any of the party.
m) The power must be exercised keeping in mind that
the evidence that is likely to be tendered, would be
germane to the issue involved and also ensure that an
opportunity of rebuttal is given to the other party.
n) The power under Section 311 Cr.P.C. must
therefore, be invoked by the Court only in order to
meet the ends of justice for strong and valid reasons
and the same must be exercised with care, caution
and circumspection. The Court should bear in mind
that fair trial entails the interest of the accused, the
victim and the society and, therefore, the grant of fair
and proper opportunities to the persons concerned,
must be ensured being a constitutional goal, as well as
a human right.”
In view of the principles laid down above, the relief sought herein
is liable to be allowed by this Hon’ble Court.

22. POWERS UNDER SECTION 311 OF THE CODE OF


CRIMINAL PROCEDURE, 1973 CAN BE EXERCISED BY
THIS HON’BLE COURT AT ANY STAGE OF ANY
INQUIRY, TRIAL OR OTHER PROCEEDINGS UNDER
THE CODE
It is submitted that the powers under section 311 of the Code of
Criminal Procedure, 1973 can be exercised by this Hon’ble Court at
any stage of any inquiry, trial or other proceedings under the Code
and the power of this Hon’ble Court to call any witness can be
invoked even if the evidence has been closed or even if the matter
is fixed for final judgment, as long as the Court retains the seisin of
the said criminal proceedings. It has been held by the Hon’ble
Supreme Court of India in Mohanlal Shamji Soni Vs Union Of
India 1991 CRI.L.J. 1521 that:
“…In order to enable the court to find out the
truth and render a just decision, the statuary
provision S.540 of the code (S. 311 of the new
code) are enacted whereunder any courts by
exercising its discretionary authority at any stage of
inquiry, trial or other proceeding can summon any
person as a witness or examine any person in
attendance though not summoned as a witness or
recall and re-examine any person already
examined who are expected to be able to throw
light upon the matter in dispute; because if
judgments happen to be rendered on inchoate,
inconclusive and speculative presentation of facts,
the end of judgment would be defeated. The very
usage of words such as ‘any Court’, ‘at any stage’,
or ‘ of any enquiry’, ‘trial or order proceedings’,
‘any person’ and ‘any such person’ clearly spells
out that this section is expressed in the widest
possible terms and do not limit the discretion of the
court in a way…”

23. That the Hon’ble Court in Aeltemsh Vs State Of Maharashtra


1980 Cri.L.J.858 has held that:
“6. Section 311 of the code empowers the
Magistrate to summon and examine any person at
any stage as a court witness.”

24. That the Hon’ble Court in Samarendra Kumar Deb Nath Vs


Union Of India 1981 CRI.L.J.NOC.144 has held that:
“... Petitioner failing to establish in application
that some positive and specific documents were
“necessary and desirable” to be called- Application
would be rejected as being “vague and careless”.
However fresh application is not barred, if such
occasion arises…”

25. That the Hon’ble Orissa High Court in Karam Chand Mukhi
and others Vs. Santosh Pradhan and another, 2004 Cri. L. J
4380 observed in paras 12 as under:
“12. …The provision in Section 311 of the Code
emphasises on the principle of providing substantial
justice to the parties. In that context 'parties' means
both accused and the complainant. Neither category
of the persons are to be excluded while considering
the question of advancement of substantial justice.
…Even when the prosecution or the
informant/complainant or both fail in making such
motion, but it comes to the notice of the trial Court
that some relevant witnesses have been omitted in
the list of witnesses submitted by the prosecution
though there are ample circumstances available on
record necessitating their examination for a proper
and truthful decision of the matter in the case, then
by recording the reason thereof, i.e., by making a
speaking order the trial Court can suo motu
examine such witnesses. That is the
amplitude/arena of jurisdiction vested in a Court
under Section 311 of the Code. It is not to be
circumvented or curtailed by any narrow
interpretation.”

26. It is submitted that the interest of justice is always to be kept in


mind and defence evidence, which will have a vital bearing on the
case, should be shut out. No party in a criminal case ought to be
foreclosed from correcting errors, if any. The evidence sought to
be placed on record is material to the case. The evidence is
required for the purpose of arriving at the truth and for the just
decision in the case, thus it is necessary that to allow the present
application.
27. That in view of the facts and circumstances mentioned above, the
applicant by means of the present application prays before this
Hon’ble Court that necessary orders and directions be passed,
thereby allowing the present application and permitting the
Accused No 1 to Accused 3 in the present matter, in the interest of
justice.
28. That the allowing of the present application shall be in the interest
of justice, in the interest of a fair decision in the matter and in the
interest of Accused No1.
29. That the present application has been preferred in the most bona-
fide manner, as advised under law.

PRAYER
It is, therefore, most respectfully prayed that, in view of submissions
made herein above, this Hon’ble Court may kindly be pleased to:

a. Pass necessary orders and directions thereby allowing the


present application and summoning Court Clerk/Court
Officer of IT Dept also to Registrar of company, New
Delhi on oath qua the documents referred herein above,
in the interest of justice;
AND
b. Pass any other order and directions as this Hon’ble Court
may deem fit and proper in the facts and circumstances
of the case.

Applicant
Delhi
Dated: Through
Counsel

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