HARKAWAT AND COMPANY Vs. UNION OF INDIA

JUDGEMENT

(1.) THE applicants have filed this petition under Section 482 Cr.PC for quashment of the criminal proceedings pending before the CJM, Ratlam for the offence under Sections 276C and 278B of Income Tax Act, 1961 against the applicants.

(2.) BRIEFLY stated the facts of the case are, the non -applicant Union of India through IT department had filed a criminal complaint against the applicant under Section 276C read with Section 278B of Income Tax Act before the CJM at Ratlam in compliance of the order passed by the assessing officer against the applicants. Against the order of assessing officer the applicant has filed an appeal before the CIT, which had been dismissed. Thereafter the applicant again preferred an appeal before the Tribunal. Then the learned Tribunal has made a reference to the High Court on the legal point, whether the Tribunal was justified in confirming the penalty under Section 271(1)(c) of the Income Tax Act when under Section 69A the cash of Rs. 1,35,000 found on 9 -7 -1982 is not assessable in the assessment year 1984 -85 ? This High Court in IT Ref. Case No. 24 of 1997 by order dt. 2 -11 -2004 answered the question referred to the High Court in favour of the assessee and held that the Tribunal was not justified in confirming the penalty imposed by the assessing authority on the applicants. After the aforesaid order in the Income Tax reference case passed by this High Court the applicant has filed an application before the learned CJM, Ratlam for the discharge of the applicant/accused as the order has been set aside by the High Court imposing the penalty on the applicants for filing of the criminal complaint against the applicants. The learned CJM by order dated 26 -7 -2005 dismissed the application filed by the applicants and held that as the charges have already been framed against the applicants and after framing of charge the Trial court cannot discharge the accused persons. Aggrieved by the dismissal of the application the applicants preferred the Criminal Revision No. 185 of 2005 before the Addl. Sessions Judge, Ratlam. The learned revisional court by order dated 17 -11 -2006 dismissed the revision and again held that the Trial court is not having jurisdiction to discharge the accused after framing of the charge as the Trial court is not having inherent power to discharge the accused at any stage. Aggrieved by the aforesaid orders the applicant has -come up before this Court by this petition under Section 482 Cr.PC. For quashment of the concerning criminal proceedings pending against the applicants before CJM, Ratlam.

(3.) IT is submitted by the learned Counsel for the applicants that the criminal proceeding has been lodged by the IT department in compliance of the penalty order passed by the assessing authority and if that order has been set aside and found to be illegal in view of the order passed by High Court in IT Ref. Case No. 24 of 1997 then certainly the order passed by the assessment officer for lodging of the criminal complaint against the applicants is not in existence and, therefore, the Trial court ought to acquit the applicant in the criminal case concerned and the learned Trial court as well as learned revisional court have wrongly dismissed the application filed by the applicants for discharge of the applicants from the offence under Sections 276C and 278B of the Income Tax Act. Therefore, prayed for the quashment of the concerning criminal proceedings pending before CJM, Ratlam against the applicant.