M A QUDDUS Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) These two criminal petitions are filed for quashing the proceedings before the Special Judge for Economic Offences, Hyderabad, in C.C. No. 7 of 1994 and C.C. No. 8 of 1994. These two criminal proceedings in C.C. No. 7 of 1994 and C.C. No. 8 of 1994 are filed before the Special Judge for Economic Offences, Hyderabad, under sections 276C and 277 of the Income-tax Act. The petitioner is an assessee and C.C. No. 7 of 1994 pertains to the assessment year 1986-87 and C.C. No. 8 of 1994 pertains to the assessment year 1987-88. The grievance of the petitioner in substance is that regarding the alleged violation of the provisions of the Income-tax Act separate penalty proceedings were initiated against the petitioner alleging the same set of facts; that he suppressed certain income in the return and thereby tried to evade the tax payable by him and also submitted false accounts. The authority of the first instance, the Income-tax Officer, Ward-3(4), Ayakar Bhavan, Hyderabad, levied penalty for both the assessment years and being aggrieved by the same the petitioner approached the Deputy Commissioner of Income-tax (Appeals), A-Range, Hyderabad. It is the case of the petitioner that, vide order dated 7/09/1994, the Deputy Commissioner of Income-tax (Appeals), A-Range, Hyderabad, accepted the contention of the assessee and set aside the penalty proceedings. It is the further contention of the petitioner that when the order imposing penalty was set aside, the present prosecution on the same set of facts cannot be continued. Learned counsel for the petitioner strenuously contended that continuing the present prosecution would be tantamount to abuse of the process of the court. Therefore, these are fit cases for exercising the jurisdiction of this court under section 482 of the Criminal Procedure Code. On the other hand, learned counsel for the Income-tax Department submitted that the penalty proceedings have not reached finality and in fact against the order of the Deputy Commissioner of Income-tax (Appeals), dated 7/09/1994, the Department has already preferred appeals before the Income-tax Appellate Tribunal and those two appeals preferred by the Department are pending before the said Tribunal. In these circumstances, he submitted that the impugned prosecutions cannot be quashed at this stage. He further submitted that the departmental proceedings and the criminal prosecution are two entirely different aspects of the case. An assessee can be prosecuted as well as there could be a levy of penalty. Even if the penalty proceedings are set aside by an appellate authority, the prosecution lies regarding the alleged violation. In support of his contention, he relied upon certain judgments of different High Courts including the judgments of this court. He relied upon the following judgments in R.G. Agarwal and Co. v. Union of India [1994] 210 ITR 617; [1994] 2 Crimes 592 of the Madhya Pradesh High Court, in Masilamani v. G. Ranganathan [1988] 1 Crimes 602 of the Madras High Court, in Shrimati Tilaka Das v. Shrimati Rina Das [1988] 1 Crimes 466 of the Guahati High Court, in ITO v. Rayala Corporation (P.) Ltd. [1994] 206 ITR 381 of the Madras High Court, in Ashok Biscuit Works v. ITO [1988] 171 ITR 300 of the High Court of Andhra Pradesh. As against these rulings, learned counsel appearing for the petitioner invited my attention to the rulings of the Supreme Court in a decision in Uttam Chand v. ITO [1982] 133 ITR 909, in Premier Breweries Ltd. v. Dy. CIT [1994] 207 ITR 871 of the Kerala High Court, in Mohamed I. Unjawala v. Asst. CIT [1995] 213 ITR 190 of the High Court of Madras. He further submitted that the Deputy Commissioner of Income-tax (Appeals) has already set aside the penalty proceedings, therefore, the prosecution cannot be continued and as such they are liable to be quashed in view of the law declared by the Supreme Court and the other High Courts. He further submitted that when the prosecution was launched, penalty proceedings were pending but as on the date of taking cognizance of the offence by the special Judge for Economic Offences, Hyderabad, the penalty proceedings were cancelled by the Deputy Commissioner of Income-tax (Appeals). Therefore, he submitted that the criminal court should not have taken cognizance of the offence at all and at any rate the proceedings are liable to be quashed.

(2.) In order to appreciate the rival contentions I have to note a few admitted facts. It is an admitted fact that the penalty proceedings were initiated against the petitioner on the ground that regarding the assessment years 1986-87 and 1987-88, the petitioner concealed the income pertaining to the receipt of the admission fees recovered from the students of the school. It is also admitted that the Income-tax Officer levied penalty and on appeal the Deputy Commissioner of Income-tax (Appeals) cancelled the order of the Income-tax Officer regarding both the assessment years, and against those orders of the Deputy Commissioner of Income-tax (Appeals), the Department has already preferred two appeals before the Income-tax Appellate Tribunal and those appeals are pending even as on today. It is only on the basis of this fact, learned counsel for the Revenue submits, that the proceedings have not reached finality. Therefore, the quashing of the criminal proceedings does not arise at this stage. He further submitted that there is also a charge against the petitioner under section 277 of the Income-tax Act in addition to the charge framed under section 276C of the Income-tax Act.

(3.) Having regard to the admitted facts narrated above, now the short point for my consideration would be whether the proceedings are liable to be quashed at this stage.