TMI Blog2001 (6) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... 77 to 1979-80 with the allegation that there had been a concealment of income arising out of a search and seizure at the petitioner's premises. Counsel for the petitioner has raised two points seeking for the quashing: (1) Though the complaint was filed in the year 1988, there is no progress in the trial. Since there is an inordinate delay in the conduct of the trial, the proceedings are liable to be quashed. (2) The penalty which was originally imposed upon the petitioner has been reduced by the Tribunal under section 273A(4) of the Income-tax Act and, consequently, the prosecution cannot be allowed to continue in view of the bar contained in section 279(1A) of the Income-tax Act. Although on the strength of these two points, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arguments were advanced on the merits, counsel for the petitioner requested permission from this court to withdraw the petitions to allow the petitioner to face trial. Accordingly, the same were dismissed on April 19, 1994. In the trial court also, the petitioner filed an application on July 8, 1997, for discharge under section 245 of the Code of Criminal Procedure, 1973, and the same was dismissed on January 7, 1998. These things would make it clear that the petitioner filed application after application either before the trial court or before this court seeking for discharge from these cases by stalling the trial for considerable number of years. However, I need not delve into this aspect as counsel for the petitioner himself did not pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 9. However, learned counsel for the petitioner would submit that the petitioner was constrained to file another application for quashing mainly due to the authoritative pronouncement rendered by the Supreme Court in Prem Dass v. ITO [1999] 236 ITR 683 observing that the order passed by the Tribunal must be construed to be the order under section 273A(4) and consequently, section 279(1A) would come into play. Arguing contra, learned counsel for the respondent would state that the said decision would not apply to the present facts of the case, since the observation made by the Supreme Court was not a ratio and, as such, the same cannot be made use of by the petitioner in these eases, the facts of which are entirety different. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Tribunal reducing the penalty to 10 per cent. and also the consequent order passed by the Commissioner. Thus, it is clear that these applications have been filed before this court only after commencement of the trial. In the light of the said fact situation, this court is called upon to decide the question as to whether the order passed by the Tribunal and the Commissioner of Income-tax has got bearing on the prosecution proceedings, in view of the bar contained in section 279(lA). On considering the submissions made by counsel for the parties and also on going through the judgment of the Supreme Court reported in Prem Dass v. ITO [19991 236 ITR 683, this court is unable to come to the conclusion that the order passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be appropriate to keep the above principle in mind. It is no doubt true that it is held by the Supreme Court in Prem Dass v. ITO [1999] 236 ITR 683 that the penalty proceeding in question having ended in favour of the assessee/accused would have a bearing on the prosecution and the order passed under section 273A(4) either by the Commissioner or by the Tribunal would attract section 279(1A) of the Act. But, in the said case, the Tribunal found that there was no concealment of income and it was a case purely on the difference of opinion as to the estimate. Furthermore, in that case, though the Commissioner reduced the penalty, ultimately, the Tribunal totally set aside the order imposing penalty. But, that is not the case here. Eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o establish that section 279(1A) would not get attracted on the basis of the materials to be produced before the trial court. It is also open to both parties to place the materials before the court during the course of trial to establish their respective contentions. With the above observations, the petitions are dismissed. Consequently' Criminal M. P. Nos. 2727 to 2730 of 1999, are closed. Since the present complaints are pending from 1988, the trial court is directed to go on with the trial and dispose of the matter within six months from the date of receipt of a copy of this order. The petitioner is directed not to put any more hurdle to the continuance of the trial and he shall co-operate for the disposal of the cases to enable th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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