S VASUDEVA RAO Vs. P S J SIGAMANY

JUDGEMENT

(1.) THE accused in C. C. No. 930 of 1989 on the file of the Chief Judicial Magistrate, Coimbatore, has filed this petition under section 482, Criminal Procedure Code, praying to call for the records in the above case and quash the same THE short facts are : THE respondent has filed the complaint under sections 193, 196, 420 and 511 of Indian Penal Code, read with sections 276C and 277 of the Income Tax Act, 1961. THE allegations in it are briefly as follows THE accused is assessed to income-tax. He is doing business as a jeweller in Coimbatore. THEre was a search operation under section 132 of the Income Tax Act, 1961 Mr. Kadarkarai, learned counsel appearing for the petitioner, would submit that the Income-tax Appellate Tribunal, Madras, had set aside the penalty imposed under section 271(1)(c) of the Income-tax Act on the premises that it is not possible to consider that the assessee had been deemed to have concealed the income under Explanation 5 and for other reasons and so the entire basis of prosecution is set aside by the order of the said Tribunal and hence the prosecution is liable to be quashed. He would further submit that in view of the acceptance of the revised return, it has to be construed that there was no concealment of any income and so the complaint is liable to be quashed. Per contra, Mr. Ramasamy, learned standing counsel for the respondent, would submit that the setting aside of the order of penalty by the Income-tax Appellate Tribunal is not germane to the prosecution of the criminal complaint and only if the penalty is set aside under section 273A of the Income-tax Act, would it be relevant so far as the criminal complaint is concerned and that has been clearly set out in section 279(1A) of the Act. He would further submit that the revised return itself would show that there was concealment of income in the first return and hence simply because a revised return was filed and accepted, that would not mean that the offences are not committedI have carefully considered the submissions made by learned counsel. In Ajanta Biscuit Co. v. Asst. Collector of Central Excise [1993] L. W. (Crl.) 575, 1 had occasion to consider a similar contention with regard to a proceeding under the Central Excises and Salt Act, 1944. In it, the accused relied upon the finding of the Appellate Collector. I have held that the finding of the Appellate Collector is not a bar to the launching of the complaint and on that score, it cannot be quashed. THE findings given in the departmental proceedings are not binding on the criminal court. It was held that they are parallel proceedings and so, the findings of the Collector would not affect the maintainability of the complaint. THE ratio of this ruling is applicable to this case Section 279(1A) of the Income-tax Act reads as follows