SHEELA GUPTA Vs. INSPECTING ASSISTANT COMMISSIONER

JUDGEMENT

(1.) Criminal Writ No. 560 of 1991 has been filed with a prayer for quashing of criminal complaints bearing Numbers 2667 to 2772 of 1998 and proceedings filed on March 29, 1988, as also the summoning order dated July 4, 1988.

(2.) It is the contention of learned counsel for the petitioner before me that the substratum of the complaint was that the income of Century Plastics had escaped assessment in the hands of Shiv Charan Gupta, who has, Therefore, committed an offence under Sections 276C and 277 of the Income Tax Act, 1961 . It is also the case put by the Department that the petitioner herein Smt. Sheela Gupta had abetted the filing of a false return/verification and, Therefore, had abetted Shiv Charan Gupta in the offence. Consequently, she was sought to be prosecuted under Sections 278 and 277 of the Income Tax Act. The assessment orders were taken up in appeal where the first appellate authority upheld the assessment, vide orders dated February 10, 1987, January 29, 1987 and January 15, 1993. Being aggrieved by the aforesaid orders, the petitioner herein filed a further appeal before the Income Tax Appellate Tribunal. The Tribunal vide order dated May 7, 1991, after going through the matter, set aside the orders of the appellate authority and remanded the cases for fresh adjudication to the Income Tax Officer. He submits that in view of the fact that the assessments, which gave rise to the complaint, have ultimately been set aside by the Tribunal, the substratum of the complaint no longer subsists, no prosecution pursuant thereto could be maintained. He draws my attention to the judgment of the Supreme Court in G.L. Didwania V/s. ITO,1997 224 ITR 687 , where it has been held that once the assessment has been set aside, prosecution thereon could not be sustained.

(3.) Learned counsel for the Income Tax Department submits that in the absence of the writ petition being filed by Shiv Charan Gupta and Mr. S.C. Jain, the benefit of any order of this court, that may accrue to the writ petitioner, cannot be passed on to Shri Shiv Charan Gupta and Shri S.C. Jain. I have heard learned counsel for the parties.