K A KHAJA Vs. INCOME TAX OFFICER SIXTH

JUDGEMENT

(1.) THE petitioner is the sole accused in E.O.C.C. No. 402 of 1987, pending on the file of the Additional Chief Metropolitan Magistrate (E. O. II), Madras, He is being prosecuted at the instance of the respondent who is the Sixth Income-tax Officer, City Circle III, Madras-6, for alleged commission of offences punishable under sections 276(1) and 277 of the Income-tax Act, 1961. In this petition filed under section 482, Criminal Procedure Code, to call for the records and quash the pending prosecution as not maintainable and an abuse of the process of court, Mr. Jamal Mohammed, learned counsel appearing on behalf of the petitioner, contended that the complaint does not allege that the petitioner, while he delivered the returns for assessment, either knew or believed to be false, or did not believe to be true, that the contents therein provided scope for evasion of tax. Similarly, as far as the offence under section 276C is concerned, learned counsel contended that mere nondisclosure will not amount to evasion and that relevant facts must be stated in the complaint to indicate that there was willful attempt to evade tax. In other words, he submitted that the factual foundation, to prove the ingredients of the offence, does not form part of the complaint and, on this sole ground, the pending prosecution was liable to be quashed. He also relied upon section 279(1A) to urge that the petitioner should not have been proceeded against for offences under sections 276C and 277 in relation to the assessment for the assessment year in question, for, subsequently, the penalty imposed had been set aside in appeal. Finally, he contended that, in the exercise of inherent powers under section 482, Criminal Procedure Code, this court will be entitled to quash the pending prosecution if it had been initiated with an oblique purpose or in any event if the chance of an ultimate conviction was bleak.

(2.) MR. K. Ramaswamy, learned counsel appearing for the respondent, while countering the arguments of learned counsel for the petitioner contended that a perusal of the complaint would indisputably show facts in detail which would be sufficient to attract the ingredients of the offences punishable under sections 276C and 277 of the Act. He submitted that section 279(1A) will not be attracted, for, there was no order under section 273A. He specifically contended that there was no oblique motive to prosecute the petitioner and only after detection by the Assessing Officer of particulars of income or the inadequacy of particulars furnished in respect of such income the petitioner chose to offer an explanation.

(3.) IT will be too difficult to hold that this prosecution had either been launched with an oblique motive or that there is no reasonable possibility of the case ending in a conviction. At this stage, the unchallenged facts found in the complaint, which, of course, may be challenged during the trial, to indicate the commission of the offences alleged. The appellate order of assessment is subsequent to the filing of the complaint and, therefore, neither the petitioner nor the respondent could not have anticipated the nature of the appellate order. I am satisfied that no ground has been made out to exercise inherent powers to stultify the prosecution that has been initiated.