.....5 & 6: [m.s. shah, d.h. waghela & akil kureshi, jj] complaint alleging inaccuracy or deficiency in maintaining record in prescribed manner as required under section 4(3) - held, it need not contain allegation of contravention of provisions of section 5 or section 6. burden to prove that there was contravention of provisions of section 5 or 6 does not lie upon prosecution.
sections 5 & 6 & pre-conception & pre-natal diagnostic techniques (prohibition of sex selection) rules, 1996, rule 9: [m.s. shah, d.h. waghela & akil kureshi, jj] deficiency or inaccuracy in filling form f - held, deficiency or inaccuracy in filling form f prescribed under rule 9 of the rules made under pndt act, being a deficiency or inaccuracy in keeping record in the prescribed manner, it is not a procedural lapse but an independent offence amounting to contravention of the provisions of section 5 or 6 of the pndt act and has to be treated and tried accordingly. it does not, however, mean that each inaccuracy or deficiency in maintaining the requisite record may be as serious as violation of the provisions of section 5 or 6 of the act and the court would be justified, while imposing punishment upon conviction, in taking a lenient view in cases of only technical, formal or insignificant lapses in filing up the forms. for example, not maintaining the record of conducting ultrasonography on a pregnant woman at all or filling up incorrect particulars may be taken in all seriousness as if the provisions of section 5 or 6 were violated, but incomplete details of the full name and address of the pregnant woman may be treated leniently if her identity and address were otherwise mentioned in a manner sufficient to identify and trace her.
section 28: [m.s. shah, d.h. waghela & akil kureshi, jj] cognizance of offence held, use of the words appropriate authority twice, at the beginning and end of clause (a) of sub-section (1) of section 28, clearly conveys that complaint could be made by.....m.s. shah, j.in this reference at the instance of the revenue, the following question has been referred for our opinion in respect of the assessment year 1984-85:'whether the appellate tribunal is right in law and on facts in deleting the addition of rs. 35,272 on account of unpaid sales tax under section 43b of the income tax act, 1961?'2. we have heard ms. mona bhatt, the learned counsel for the revenue and mr. r.k. patel, the learned counsel for the respondent- assessee.3. the controversy pertains to the amount which was collected by the respondent-assessee as sales tax in the last quarter of the previous year but payable statutorily in the subsequent year. the tribunal had held in favour of the assessee in view of the decision or the andhra pradesh high court in srikakollu subba rao & co. v. union of india : [1988]173itr708(ap) .4. at the hearing today, our attention is invited to the decision of the supreme court in allied motors (p) ltd. v. cit : [1997]224itr677(sc) . the apex court has held that as per the first proviso added to section 43b of the income tax act, 1961 by the finance act, 1987, the main part of section 43b will not apply in relation to any sum which was actually paid by the assessee in the next accounting year if it was paid on or before the due date for furnishing the return of income in respect of previous year, in which the liability to pay such sum was incurred and the evidence of such payment is furnished by the assessee along with the return. explanation 2 was, therefore, added by the finance act, 1989 with retrospective effect from 1-4-1984 for the purpose of removing any ambiguity about the term 'any sum payable' under clause (a) of section 43b.5. following the aforesaid decision, we answer the question in the affirmative, i.e., in favour of the assessee and against the revenue.6. the reference, accordingly, stands disposed of.