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2021 (7) TMI 960 - HC - Income TaxBogus claim of Deduction u/s 35(i)(ii) - Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 - offences alleged against the petitioner herein are under Sections 409, 420, 464, 465, 466, 468 and 471 read with 120-B of IPC - HELD THAT:- Prima facie, there are serious allegations against the petitioner herein. There are several triable issues. The total tax advantage derived was around ₹ 22.43 Crores which would have accrued to the Government. Thus, Government is deprived to the said extent. It is loss to public exchequer. The petitioner has not voluntarily forgone the claim of exemption claimed on the basis of false donation certificate received by him and when he was asked to prove the genuineness of the said certificate during the assessment procedure, then only the petitioner agreed to forgo such exemption. Thus, the petitioner has to prove his innocence by facing trial. The contention of the petitioner that there is no mens rea is also triable issue in view of the facts stated. It is apt to refer to the decision rendered in Kamal Shivaji Pokarnekar v. The State of Maharashtra [2019 (2) TMI 1894 - SUPREME COURT] wherein the Apex Court has categorically held that quashing criminal proceedings was called for only in a case where complaint did not disclose any offence, or was frivolous, vexatious, or oppressive. If allegations set out in complaint did not constitute offence of which cognizance had been taken by Magistrate, it was open to High Court to quash same - The Court has to consider whether complaint discloses that prima facie, offences that were alleged against Respondents. Correctness or otherwise of said allegations had to be decided only in trial. At initial stage of issuance of process, it was not open to Courts to stifle proceedings by entering into merits of the contentions made on behalf of Accused. Criminal complaints could not be quashed only on ground that, allegations made therein appear to be of a civil nature. If ingredients of offence alleged against Accused were prima facie made out in complaint, criminal proceeding shall not be interdicted. In Skoda Auto Volkswagen India Private Limited Vs. The State of Uttar Pradesh and Ors [2020 (11) TMI 994 - SUPREME COURT] the Hon’ble Apex Court referring to the various judgments rendered by it categorically held that the High Courts in exercise of its inherent powers under Section 482 of Cr.P.C has to quash the proceedings in criminal cases in rarest of rare cases with extreme caution. In view of law laid down by the Hon’ble Apex Court and in view of the above said discussion, as there are serious allegations against the petitioner herein and there are several triable issues, this Court is not inclined to quash the proceedings and the petitioner failed to make out any case to quash the said proceedings. Therefore, this Criminal Petition is liable to be dismissed.
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