VASUDEVA RAO S Vs. SIGAMANY P S J

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

(2.) 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.

(3.) SO penalty was cancelled for the reasons stated by the Tribunal. It does not say that there was no concealment of income at all. On this ground also, I am unable to accept the submission made by Mr. Kadarkarai that because of the order of the Tribunal, the criminal proceedings are liable to be quashed Regarding the second submission of Mr. Kadarkarai that because the revised return was accepted, it must be held that there was no suppression of income. In paragraph 5 of the complaint, it is stated that on October 27, 1982, the accused filed a return of income only for Rs.1, 89, 720 which included only Rs. 1 lakh representing the value of unaccounted stock. It is further alleged that fearing departmental action, on August 31, 1983, the accused filed a revised return and admitted the value of corals and pearls, etc., at Rs. 2, 50, 000. So simply because the revised return was accepted on August 31, 1983, it would not amount to an admission that there was no concealment of income. It is specifically stated that originally the value was shown only as Rs. 1 lakh and fearing departmental action, the revised return was submitted, putting the value of Rs. 2, 50, 000. In the circumstances, I am unable to accept either the second submission made by Mr. Kadarkarai