TMI Blog2018 (3) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that the petitioner had not concealed her income, under the Income-tax laws. The impugned complaint has been filed also under Income-tax laws. It would be an exercise in futility to allow prosecution of the petitioner, because in the face of the Income-tax Appellate Tribunal judgment dated May 29, 2009 the petitioner would be entitled to acquittal at a later stage in trial proceedings. Therefore, also this petition deserves to be allowed. - U/S 482/378/407 No. 1384 of 2008. - - - Dated:- 2-11-2017 - AJAI LAMBA J. For the Petitioner : Pradeep Agrawal , assisted by Anil Tewari, Advocates For the Respondent : Government Advocate, D. D. Chopra, Manish Mishra, Advocates JUDGMENT Ajai Lamba J. - 1. The petition has been filed under section 482 of the Criminal Procedure Code for quashing Complaint Case No.1305 of 2007 under section 276C(1) and section 277 of the Income-tax Act, 1961 pending in the court of Special Chief Judicial Magistrate (Economic Offences), Lucknow. 2. Heard Shri Pradeep Agrawal, advocate assisted by Shri Anil Tewari, advocate for the petitioner, Shri Manish Mishra, advocate for respondent No. 2 and the learned counsel for the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial Magistrate (Economic Offences), Lucknow. The said complaint was registered as Complaint Case No.1305 of 2007. It has been pleaded in the petition that the complaint does not make a reference to the pending appeals before the Income-tax Appellate Tribunal against the appellate orders regarding quantum ; as well as penalty for the assessment year 2002-03. Photocopy of the complaint has been annexed as annexure-VII. On considering the complaint impugned summoning order has been issued vide annexure-VIII, dated January 8, 2008. The proceedings in the complaint case and the order of summoning are under challenge in this petition. 9. The petitioner filed supplementary affidavit along with certain documents while bringing on record the judgment passed by the Income-tax Appellate Tribunal, Lucknow Bench dated May 29, 2009. A perusal of the judgment dated May 29, 2009 (supra) indicates that it has been passed in the context of penalty levied under section 271(1)(c) of the Income-tax Act. The operative portion of the judgment rendered by the Income-tax Appellate Tribunal reads as under : 31. In the present case, as we have noted that the assessee had not concealed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment has already issued the refund of ₹ 22,57,790 to the petitioner vide order dated July 13, 2009. 12. From the contents of the affidavit filed on behalf of the Income-tax Department it becomes evident that the order passed by the Income-tax Appellate Tribunal dated May 29, 2009 (supra) has attained finality. It has been conclusively and finally held that penalty was not leviable in the case of the petitioner. 13. A perusal of the impugned criminal complaint annexure-VII indicates that it was filed on the plea that the petitioner concealed income whereupon penalty had been levied and the order in that regard had been passed. The complaint has been lodged on the foundation and basis that the petitioner furnished false and inaccurate details of particulars of income at the time of filing return for the assessment year 2002-03. The petitioner had full knowledge of the same and yet the income had been concealed to evade tax. 14. A reference to the contents of the impugned complaint and the proceedings initiated under the Income-tax Act before the Departmental authorities indicate that the issue is common as to whether the petitioner concealed income and whether on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalties are cancelled on the ground that there is no concealment, the quashing of prosecution under section 276C is automatic. In our opinion, the appellants cannot be made to suffer and face the rigours of criminal trial when the same cannot be sustained in the eyes of law because the entire prosecution in view of a conclusive finding of the Income-tax Appellate Tribunal that there is no concealment of income becomes devoid of jurisdiction and under section 254 of the Act, a finding of the Appellate Tribunal supercedes the order of the Assessing Officer under section 143(3) more so when the Assessing Officer cancelled the penalty levied. In our view, once the finding of concealment and subsequent levy of penalties under section 271(1)(c) of the Act has been struck down by the Tribunal, the Assessing Officer has no other alternative except to correct his order under section 154 of the Act as per the directions of the Tribunal. As already noticed, the subject matter of the complaint before this court is concealment of income arrived at on the basis of the finding of the Assessing Officer. If the Tribunal has set aside the order of concealment and penalties, there is no c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint has been filed on the premise that the petitioner with criminal intent concealed income and, therefore, penalty had been levied, for the assessment year 2002-03. The order of penalty having been set aside, in the considered view of this court, criminal proceedings cannot be allowed to continue. 21. The basis for initiating proceedings under the Income-tax laws by imposing penalty and on the criminal side by lodging criminal complaint is the same. The Income-tax Appellate Tribunal has taken into account all the facts and circumstances of the case, plea and explanation furnished by the petitioner and the case of the Department, whereupon it has been held that the petitioner did not conceal the income. The cause for initiating criminal proceedings was alleged concealment of income and consequent order of penalty. The cause itself stands eliminated and dislodged vide judgment of the Income-tax Appellate Tribunal. In such circumstances, the consequences (criminal complaint) cannot be allowed to survive. 22. The Department has accepted that income had not been concealed, therefore, there is no occasion or logic either in law or in facts to prosecute the petitioner at the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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