Kamal Bhahdur Vs. Commissioner of Income-tax - Court Judgment

Excerpt:

- .....and where under the learned special court of economic offences has taken cognizance of the offence under sections 276c and 277 of the income tax act, 1961 ('the act').3. it appears that a complaint was filed before the special court of economic offence at muzaffarpur, stating therein, inter alia, that the accused has consciously concealed the true particulars of income or has deliberately furnished inaccurate particulars and thereby has wilfully attempted to evade tax, etc., chargeable or imposable under the act. on the basis of the complaint, the learned court below has taken cognizance of offences under sections 276c and 277.4. the learned counsel for the petitioner submitted that the very basis of the prosecution of the petitioner has been set at rest by the commissioner (appeals) and that the order of assessment passed by the assessing authority has been set aside vide order as contained in annexure-6 to the supplementary affidavit and, therefore, the criminal prosecution launched against the petitioner is not maintainable.5. on a perusal of the order passed by the appellate authority as contained in annexure-6, it would appear that the learned appellate authority has.....

Judgment:

1. Heard the learned counsels for the parties.

2. By this application, the petitioner has prayed for quashing the entire criminal prosecution launched against the petitioner in Complaint Case No. 32 of 1992, whereby and where under the learned Special Court of Economic Offences has taken cognizance of the offence under sections 276C and 277 of the Income Tax Act, 1961 ('the Act').

3. It appears that a complaint was filed before the Special Court of Economic Offence at Muzaffarpur, stating therein, inter alia, that the accused has consciously concealed the true particulars of income or has deliberately furnished inaccurate particulars and thereby has wilfully attempted to evade tax, etc., chargeable or imposable under the Act. On the basis of the complaint, the learned Court below has taken cognizance of offences under sections 276C and 277.

4. The learned counsel for the petitioner submitted that the very basis of the prosecution of the petitioner has been set at rest by the Commissioner (Appeals) and that the order of assessment passed by the assessing authority has been set aside vide order as contained in Annexure-6 to the supplementary affidavit and, therefore, the criminal prosecution launched against the petitioner is not maintainable.

5. On a perusal of the order passed by the appellate authority as contained in Annexure-6, it would appear that the learned appellate authority has held that the assessing officer was wrong in treating the investment in the market and income from the market as belonging to the appellant petitioner and, therefore, the additions made in regard to unexplained investments are deleted. Since the finding of the assessing authority has already been set aside by the appellate authority, the criminal prosecution launched against the petitioner is not sustainable.

6. In this connection, reference may be made to the case of G.L. Didwania v. Income Tax Officer [1997] 224 1TR 687 (SC).

7. For the reasons and discussions aforesaid, therefore, I allow this application and quash the entire criminal prosecution launched against the petitioner as it will be an abuse of the process of the court.