BIMLA SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) As a common question of law is involved in both the cases, they have been heard together and this judgment will cover both the cases.

(2.) THE petitioner are admittedly the partners of a firm, namely, M/s. A. B. Sales, who have been proceeded against in complaint case no. 4/96 on the basis of a complaint filed by the Income Tax authority. The petitioners have impugned the order dated 22.9.1998 by which the learned Special Judge, Economic Offences, Ranchi, has rejected the prayer of the petitioners for their discharge.

(3.) LEARNED counsel for the petitioners submits that when the very basis of the criminal case, that is, the assessment order dated 30.9.96 for the assessment year 1995 -96 has been set aside by the appellate authority and the matter has been remitted for investigation by the Assessing Officer, there is no ground for proceeding against the petitioners. In support of his contention he has relied on the decisions reported in AIR 1992 SC 1831; (1982) 133 ITR 909 (SC); (1989) 80 CTR (Pat) 31 and (1995) 129 CTR 343 (Pat). His second contention is that in view of the decision of this Court reported in 1995 (1) PLJR 633 and (1998) 5 SCC 343, in absence of any specific allegation against a particular partner of a firm he cannot be proceeded against criminally. According to him, there is no averment in the complaint petition that these two petitioners were incharge of day to -day affair of the firm at the relevant time.