GULAB CHAND SHARMA Vs. H P SHARMA

JUDGEMENT

(1.) These two petitions under section 561-A Criminal Procedure Code have been referred to the Division Bench mainly to consider the question whether the previous decision between the parties in C.W. 189-D/1965 acts as res judicata barring the petitioner from raising in these petitions those contentions which have been aiready decided against him in the writ petition.

(2.) The facts are not in dispute. The petitioner Sharma in his return under the Income-Tax Act 1922 for the assessment year 1959- 60 claimed deduction for the payment of a sum of Rs. 18,000.00 allegediy made to M/s. Modem Sanitation for electrical and sanitary supervising charges during the relevant year. On enquiry, the lncome-Tax Officer was of the view that the alleged payee did not exist at ail and no such payment had been made by the petitioner. Not only the petitioner's daim to the deduction was disallowed in the assessment but two further proceedings were taken against the petitioner under the Income-Tax Act 1961, which had in the meanwhile corne into force. Firstly, a penalty was imposed on the petitioner for having made a false rctum under section 274 read with sections 271 and 273 of the Income-Tax Act 1961. Secondiy, two identical complaints were filed against the petitioner-one by the Income-Tax Officer and the other by the Commissioner of IncomeTax for having committed offences punishable under (l) section 277 of the Income-Tax Act 1961 making a false statement which the petitioner knew to be false or did not believe to be true), (2) section 193 of the Indian Penal Code (giving or fabricating false evidence in a judicial proceeding) and (3) sections 467 and 471 Indian Penal Code (forging a document and using it as genuine).

(3.) in the proceedings for imposition of penalty under the IncomeTax Act 1922 the petitioner has paid the penalty but his appeal against it is said to be still pending. To checkmate the complaints filed against him, the petitioner filed writ petition No. 189-D/1965 praying that the complainants (the Income-tax Officer and the Commissioner of Income-Tax) be restrained from pursu ng the said complaints pending before a Magistrate on the grounds that section 277 of the Income-Tax Act 1961 could not apply to the alleged offence committed by the petitioner relating to the assessment year 1959-60 and the income-tax authorities could not resort to both the proceedings against the petitioner namely (l) imposition of penalty and (2) filing of complaints inasmuch as this would be in violation of Articles 14 and 20 of the Constitution. A Division Bench of this court dismissed the writ petition holding that:-(l) in view of section 297(2) (b) of the Income-tax Act 1961 the assessment of the petitioner had to be made in accordance with the procedure specified in the Income-Tax Act 1961 inasmuch as the retum for the assessment year 1959-60 had been iiled by the petitioner on 7-8-1962 i.e. after the commencement of the Income-Tax Act 1961, (2) section 277 of the Income-Tax Act 1961 was applicable to a false statement made in a retum filed on 7-8-1962 and (3) a person can be penalised under section 271 of the Income-Tax Act 1961 and can aiso be prosecuted for an offence in respect of the same facts.