9911796707
TMI Blog2019 (7) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income Tax Department has entered appearance on advance notice, therefore, this Court proceeded to hear the matter finally with the consent of learned counsel for the parties. 2. Prayer in this petition is for quashment of proceeding of criminal case No.29362/1996 (Income Tax Officer, Rajnandgaon Vs. M/s System India Castings, Bhilai & Others) pending before CJM, Durg. 3. At the outset, learned Standing Counsel for the Department would submit that the petitioners having already moved before the trial Magistrate for dropping the proceeding, the instant petition is not maintainable. However, considering that law in respect of continuation of prosecution for commission of offence under Sections 276C and 277 read with Section 278 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he SalesTax number on the bills was also found to be bogus after making enquiries from the SalesTax Department. Assessee was not able to furnish receipts in respect of the payments claimed to have been made in cash. Further, no payment slips were available in respect of the above purchases. In one of the bills, the vehicle used for transportation was found to be a Tractor Trolley instead of the Truck as claimed by the assessee. Further, the same Tractor Trolley was shown to be carrying some other goods on 29/01/90 from Bhilai to Tedesara. It is not possible for the Tractor Trolley to transport Cast Iron Scraps from Jabalpur to Tedesara on 31/01/90 as claimed by the assessee. Based on all these discrepancies, the A.O. arrived at a conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard the appeal preferred by the assessee on merits, it reached to the conclusion that the petitioner has not concealed his income, therefore, penalty of Rs. 4,26,630/deserves to be cancelled. Since the act of concealment of income is the main constituent for charge under Section 276C and 277 of the Act, once the CIT (Appeals) concluded that there was no concealment of income on the part of the assessee, the very foundation of the charge would not survive. It is also to be noted that against the order passed by the CIT (Appeals) deleting the penalty, the Revenue preferred second appeal before the Tribunal, Nagpur. However, the appeal filed by the Revenue was dismissed by order dated 12.6.1997 (AnnexureP/ 10). The Revenue did not take up th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justified in dismissing the criminal revision ignoring the settled law as laid down by the Supreme Court that the finding of the Appellate Tribunal was conclusive and the prosecution cannot be sustained since the penalty after having been deleted by the complainant following the Appellate Tribunal's order, no offence survives under the Income Tax Act and thus "quashing of prosecution is automatic." Same expression has again been used by the Supreme Court in para24 also. 8. In view of the settled legal position as enunciated by the Supreme Court in the matter of K.C. Builders (Supra), it will be an empty formality to direct the petitioners to approach the trial Magistrate, who has otherwise kept the application preferred by the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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