Oral Judgment:
1. Applicant is the Respondent in Criminal Miscellaneous Application No.737 of 2010 pending in the Court of 3rd Judicial Magistrate, First Class, Vashi, under provisions from Domestic Violence Act. In the said application learned Judicial Magistrate has passed an interim order directing the Applicant to pay a monthly maintenance of Rs.1,00,000/- to the Respondent Nos.1 to 3. Respondent No.1 is the wife of the Applicant and Respondent Nos.2 and 3 are his daughters. Respondent Nos.2 and 3 are aged about 15 and 11 years, respectively. The Applicant has further been directed to provide residence to the Respondent Nos. 1 to 3 or to pay a monthly rent of Rs.30,000/-.
2. This order was challenged before the Sessions Court in an appeal filed by the Applicant. The said appeal has been dismissed by the Sessions Court, Thane. The  Applicant was married to Respondent No.1 on 11.02.1997. He has filed a divorce  petition bearing H.M.A. Petition No.403 of 2003 under Hindu Marriage Act, 1955,   before the District Judge, Delhi, for grant of decree of divorce on the ground of cruelty. Said petition has been transferred by the Hon'ble Supreme Court and is now pending in  the Family Court, Bandra, Mumbai. In the said petition an amount of Rs.20,000/- by  way of interim monthly maintenance was granted to Respondent No.1 by the District  Judge, Delhi. The Applicant and the children of Applicant and Respondent No.1 have  been staying separately since 2004.
3. The present petition under Protection of women from domestic violence  has been filed by Respondent No.1 on behalf of herself and on behalf of her children, in the year 2010, in the Court of Judicial Magistrate, First Class, Vashi. As already stated,  interim maintenance of Rs.1,00,000/- and monthly rent of Rs.30,000/- has been granted by the learned Magistrate. Appeal has been dismissed. It is in this background that the Applicant is before this Court challenging the orders of Courts below.
4. Learned Counsel Mr. Abad Ponda is heard on behalf of the Applicant and  the Respondent No.1 is heard on behalf of herself and her children. It is submitted by Mr. Ponda that Applicant is paying Rs.20,000/- p.m. to Respondent No.1, as per order passed by the District Judge, Delhi, in a divorce petition filed by the Applicant on the  ground of cruelty. It is submitted that there are no serious breaches in the payment of  said amount except few breaches, which have been rectified lateron. Respondent No.1 does not deny this position. Question before the learned Trial Court and Appellate Court  was as to whether despite the said order of grant of Rs.20,000/- by way of  maintenance,  was it necessary or permissible to grant additional maintenance to Respondent Nos.1 to 3 by way of interim order under Protection of Women from Domestic Violence Act, 2005.
Both the Courts below have taken view that the provisions of the Act are in addition to  the provisions available to the aggrieved person under other laws, including marriage  laws and section 125 of Cr.P.C. As far as the domestic violence is concerned, both the  Courts below came to the conclusion, that there appeared to be economic violence  imposed by the Applicant on Respondent No.1 and therefore, there exist a case for passing an interim order. Whether there existed, a prima facie case of economic violence  or not, and / or whether Respondent nos.1 to 3 were entitled to the orders passed by the  Courts below can be examined in the light of material on record, which was brought  before the Trial Magistrate and before the Appellate Court.
5. It is admitted position that the Applicant is Director or Managing Director  or Promoter or holding some important position in at least more than 10 companies.  Learned Counsel has submitted before this Court that though the Applicant is Director  or Promoter in many companies, he is not receiving pecuniary benefits from those  companies except SKS Ispat Pvt. Ltd. It was submitted that SKS Ispat Pvt. Ltd. was giving salary of Rs.24,00,000/- to the Applicant in the month of March, 2013. A  Resolution was passed by the Board of Directors in July, 2013 to reduce the salary from Rs.24,00,000/- to Rs.6,00,000/-. As such, it is submitted that Applicant is earning Rs.50,000/-p.m. and therefore, it is just not possible for the Applicant to pay Rs.1,30,000/- to Respondent Nos.1 to 3.
6. Respondent No.1 on behalf of herself and her daughters has submitted that the salary was reduced intentionally to frustrate and defeat the genuine claim of Respondent Nos.1 to 3. It is submitted by Respondent No.1 that SKS Ispat Pvt. Ltd. is a  Company owned by the Applicant and his brother. There are only two Directors of  the Company and therefore, they can pass any type of resolution to defeat the interest of the Respondents. I have gone through the copies of both the resolutions and I am of the view that the second resolution passed schemingly to defeat and frustrate genuine claim of the respondents. I have gone through the other papers submitted by Respondent No.1 before the Trial Magistrate and before this Court. The contents of which are not disputed by the Applicant. Though the learned Trial Magistrate and the learned Appellate Court have not taken into consideration contents of the documents produced by Respondent No.1, they have made reference to those documents and said that some proceedings are pending before the Income Tax Authority against the Applicant, which indicated that income of Applicant was much more than Rs.6,00,000/- p.a. I have gone through those documents and particularly of the assessment year 2001-2002. An order in respect of which was passed in 2008 by the Assistant Commissioner of Income Tax, Mumbai. The Assistant Commissioner of Income Tax in his order dated 11.12.2008 had made following observations in respect of the assessment of income of the Applicant.
âThere was search and seizure action u/s.132 (1) carried out by DDIT (Inv.), Unit-III(2), Mumbai on 10.11.2006 in the case of M/s. SKS Ispat Ltd. Group including its directors and the directors of different associate sister companies and in the assesse's own case, who is one of the director in the company, M/s. SKS Ispat Ltd. The M/s. SKS Ispat Ltd. Group is mainly involved in manufacturing of steel products which are required for various purposes. The assessee in his individual capacity is also involved in trading of various steel products.
2. As the assessee's was covered u/s.132 (1) in the SKS Ispat Ltd. Group of cases, therefore, a notice u/s. 153A of the I.T. Act, was issued on 05.10.2007 and same was served on the assessee. In response to the said notice, assessee filed Return of Income on 14.02.2008 declaring total income of Rs.4,36,314/- enclosing therewith copies of Audit Report, Trading, Profit and Loss A/c., Balance Sheet alongwith its annexure.
3. â¦.....
4. â¦....
5. During the year under consideration relevant to A.Y.2001-02, assessee was engaged in the business of trading in Iron and Steel under the proprietory concern M/s. Shree Krishna Structures. On a total turnover of Rs.71.22 crores, the assessee has shown net income of Rs.4,35,360/- inspite of the fact that there is interest income of Rs.17,93,558/-.
6. M/s. SKS Ispat Group made a disclosure of Rs.10 crores before the Investigation Wing on the total discrepancies found during the search related to companies and individuals of the group. However, the group retracted with this disclosure and didn't shown this amount as income in any of the company or the individual.
7. â¦....
8. Unsecured Loans :
During the course of assessment proceedings, it was found that assessee has received following unsecured loan during the year. Out of these unsecured loan (except family members), the assessee was asked to produce following parties to examine their identity, creditworthiness and genuineness. He was also asked to file their confirmations. These parties are as under :
| S.No . | Name of Lender | Amount (Rs.) | Remarks |
| 1 | Kailashdevi Agarwal | 20,60,164/Â | Â |
| 2 | Meena Agarwal | 10,31,233/Â | Â |
| 3 | Shivkumar Agarwal | 10,29,198/Â | Â |
| 4 | Shivkumar Agarwal (HUF) | 10,28,931/Â | Â |
| 5 | M/s. Abiman Steels Ltd. | 34,00,000/Â | SquaredÂup during the year |
| 6 | M/s.Masitia Capital Services Ltd. | 5,00,000/Â | Not mentioned in annexure of Form No.3 CD. |
| 7 | TOTAL | 90,49,526/Â | Â |
i) Masitia Capital Service Ltd.
ii) R.S.K. Trading Corporation
iii) Shiv Kumar Agarwal
iv) Shiv Kumar Agarwal (HUF)
v) Kailash Devi Agarwal
vi) Meena Agarwal
related to unsecured loan, we have requested the parties to appear before you for verification of their  transaction with us. We hope they will take the  compliance. In case if they do not comply we request  you to exercise your preliminary powers to enforce the  compliance.
Since, it is primarily the duty of the assessee to prove  the identity, creditworthiness and genuineness of the loan  creditors, which he has failed to discharge, this amount of  Rs.90,49,526/- is added u/s. 68 of I.T. Act, 1961 as  unexplained cash credit. Penalty proceedings u/s.271(1) (c) of  the I.T. Act, is initiated separately on account of unexplained  cash credit and filing inaccurate particulars of income.â
7. It is also necessary to take note of para 9.5 of the said order, which reads as
under :-
âThe assessee, during the course of assessment proceedings didn't produce any proof that the sundry creditors  as mentioned in para no.9.2 have actually supplied the material. There is no transportation and delivery proof. It  means they have not purchased any material from them but  only have taken accommodation sales bills from these parties.  Since the sales are genuine, the assessee has purchased the  material not from these parties but somewhere else for which  the payment was made in cash. The summons were issued to  these sundry creditors and the Office Inspector visited the premises of some of the companies i.e. Bellary Steel and Alloys  Ltd., Sartia Steel and Industries Ltd., Sri Varalakshmit Jute  Twine Mills Ltd., Sri Vasavi Industries Ltd., Sujana Steels Ltd. but these companies were found to be non-existent on the addresses provided in the bank statements of Syndicate Bank  from where bank statements of these companies were collected.  The assessee never provided even the addresses of these  companies. These facts were brought in the notice of the assessee vide order sheet entry 18.09.2008 and notice dated  06.10.2008 and 17.11.2008 but they never replied.â
8. The conclusion of assessment order is at para 9.9, which reads as under :
âConclusion :
As discussed in the preceding paragraph about the modus operandi done by the M/s. SKS Ispat Ltd., and the  group concern with conveyance of the entry operators, the  assessee also through his proprietorship concern had adjusted his unaccounted cash by way of investment in business of steel  trading and routed through sundry creditors whose  transactions are merely on paper. These purchases are in cash  from somewhere else. The assessee could not prove that purchases have actually been made from these sundry creditors, material has been transported and delivered. All  these unexplained sundry creditors need to be added u/s.68 of  I.T.Act, 1961.
9. The total income for the assessment year was assessed as under :
10. Subject to the above remarks, assessee's total income is computed as under
I. INCOME FROM BUSINESS :
Net Profit as per P and L a/c. of prop. Concern
M/s. Shree Krishna Structures - Rs.4,35,361/-
Add : Donations - Rs.**12,953/- Rs.****4,48,314/-
Add: Disallowances, as discussed in body of order :
(1) On a/c. of Household withdrawals Rs.*****4,80,000/-
(2) On a/c. of unsecured loans Rs.****90,49,526/-
(3) On a/c. of Bogus creditors Rs.26,83,73,880/- Rs.27,79,03,406/-
                           -------------- -----------------------
                         Gross Total Income: Rs.27,83,51,720/-
Less: Deduction u/ch, VI-A :
U/s.80 L Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Rs. ****** 12,000/-
                                                    Total Income : Rs.27,83,39,720/-
10. As such it is very clear from the assessment order passed by the Assessment Officer i.e. Assistant Commissioner of Income Tax that there was large scale evasion of income tax on the part of the applicant and huge tax was imposed on him and it was proposed that a penalty proceeding will be taken against him. I am informed by the learned Counsel for the Applicant that this order has been challenged before the Appellate Commissioner of Income Tax that the total income is reduced from Rupees twenty seven crores to Rupees four crores. However, no documents in support of that have been produced.
11. It is thus, clear from the income tax papers and other materials that the Applicant has been schemingly avoiding to disclose his true sources of income and true income to frustrate genuine claim of Respondents. Even if it assumed that Appellate Commissioner reduced the income of the Applicant from Rupees Twenty Seven crores to Rupees Four crores for the assessment year 2001-2002, the income obviously is much more than what is stated by the Applicant before this Court.
12. It need not be mentioned here that income disclosed in the Income Tax Returns is not always correct income of the person. Court has powers to determine the income of the husband on the basis of record placed before it and to determine just and proper amount of maintenance to be paid to the aggrieved person. In the present case it is obvious that the income shown in the returns and the salary as per the second resolution does not appear to be the real income of the Applicant. On the basis of the assessment order passed after search and seizure, the Court can draw an inference that the Applicant had more than the income disclosed to the Income Tax Authorities. The maintenance order under section 125 of Cr.P.C. or under Protection of Women from Domestic Violence Act, can be passed on the basis of palpable income of the husband.
13. I do not find anything wrong in the orders of both the Courts below and orders do not call for any interference. Since the application is pending before the Trial Magistrate since last more than four years because of the intervening proceedings, it is directed that application be heard on expeditious basis and be decided as early as possible.
14. Criminal revision application stands dismissed.