TMI Blog1997 (10) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... he company in their individual capacity all for the same purpose of quashing C. C. No. 670 of 1988 on the file of the Additional Chief Metropolitan Magistrate (Economic Offences). The other two writ petitions have been filed by the company to quash the subsequent criminal proceedings in C. C. No. 152 of 1989 and C. C. No. 133 of 1989 initiated by the respondents. In the affidavit of the petitioners, the allegations are that they have been wrongly prosecuted by the respondents before the Additional Chief Metropolitan Magistrate without any basis and without following the procedure established by law and the assessment levied by the respondents has been quashed by the Income-tax Appellate Tribunal and in spite of that they have been prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, it will not amount that these complaints are at the instance of the Commissioner and as the section has not been complied with for prosecution, the prosecution is illegal and not in accordance with law, that as the liberty of the petitioners is threatened by the initiation of the prosecution not in accordance with law the petitioners are entitled to seek protection under article 21 of the Constitution of India and, therefore, the prosecution has to be quashed. The allegation of the respondents is that the petitioners have another unit in Hosur and for the purpose of getting the income-tax benefits they have inflated the expenses of the other unit also and the records have been fabricated and, therefore, they have committed the off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the competent court but not by the writ court. The apex court has held in a series of cases that for any findings on a question of fact no writ will lie unless there are patent errors leading to manifest injustice. Vide Ameteep Machine Tools v. Labour Court [1980] 57 FJR 63 ; AIR 1980 SC 2135 and Muni Lal v. Prescribed Authority, AIR 1978 SC 29. Therefore the question whether these complaints have been lodged at the instance of the Commissioner or at the instance of the Deputy Commissioner with the sanction of the Commissioner is a question of fact to be considered by the trial magistrate and this court cannot go into that question at this stage when especially there is nothing to show that there is patent error leading to manifest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed as the allegations raised by the petitioners are matters of evidence and the petitioners have to seek the very remedy before the concerned magistrate, they are not expected to repeat the very same contention once again in this court even though the form of relief sought for is under article 226 of the Constitution of India. Anyhow the relief is the same, though the same is sought for under two different forums. As mentioned above, whether the complaints have been lodged properly and in accordance with law is a matter for consideration by the magistrate. Therefore, that aspect cannot be gone into in these writ proceedings. Then coming to the mala fides alleged, in these proceedings, learned counsel would submit that the assessments ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot entitled to any relief under sections 80HH and 80-1 of the Income-tax Act. Therefore, the observation made by the Tribunal makes it clear that the petitioner company has claimed certain reliefs to which they were not entitled and they included the notional interest for the purpose of the same relief. Whether this conduct on the part of the company will amount to offence or not is not a question of fact to be considered by the learned Additional Chief Metropolitan Magistrate. When the competent authority, viz., the income-tax appellate authority itself has made an observation that the assessee has claimed certain benefits though they are not entitled to, it cannot be argued that in view of the order of the appellate authority the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegation that as the provisions have not been complied with, the liberty of the individual is at stake. Learned senior counsel, Mr. S. V. Subramaniam, appearing for the respondents, would submit that article 226 of the Constitution of India cannot be used against the proceedings before the court of law and he relies upon a decision of the Kerala High Court in Sheikriyammada Nalla Koya v. Administrator, Union Territory of Laccadives, Minicoy and Amindivi Islands, AIR 1967 Ker 259, wherein the court has held that article 226 of the Constitution of India cannot be invoked to set aside the order passed by the court. Even though in this case no order is passed, but only the proceedings are pending before the competent court. Article 226(1) re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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