TMI Blog1989 (6) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... of the accused on March 5, 1985. In the course of search, it is alleged that certain original books of accounts disclosing sale of arrack at different rates were found. According to the income-tax authorities the return of income filed by the petitioner on December 6, 1983, was incorrect and it was filed by fabricating and manipulating false accounts. On this allegation, a complaint, copy of which is marked in this case as annexure-5, was filed before the Additional Chief Judicial Magistrate's Court (Economic Offences), Ernakulam, for offences under sections 276C(1) and 277(i) of the Act and sections 193, 196 and 415, IPC. That court registered the complaint as C. C. No. 34 of 1987 and issued summons to the petitioner. The petitioner seek ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IPC, if at all committed, must be taken to have been committed before the Income-tax Officer, D-Ward, Quilon. Section 136 of the Act provides that any proceeding before the income-tax authorities shall be deemed to be judicial proceeding for the purpose, of section 196, IPC, and that every income-tax authority shall be deemed to be a civil court for the purposes of section 195 of the Code of Criminal Procedure. So, if an offence under section 193 or 196 of the IPC has been committed in respect of a proceeding before the income-tax authority, that authority alone can file a complaint under section 195 of the Code of Criminal Procedure. If that authority is not filing a complaint, then some other authority to which the first authority is subo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence under section 277 of the Act was not considered by this court. Independent of the charge under sections 193 and 196, IPC, prosecution for violation of the provisions of the Act is maintainable. Offences under sections 276C (1) and 277(i) of the Act are independent of sections 193 and 196, IPC. The restriction for initiation of prosecution for an offence under the Act is that it cannot be initiated except with the previous sanction of the Commissioner of Income-tax. The complaint in this case is one filed at the instance of the Commissioner of Income-tax, Trivandrum, as per his proceedings No. 898/ADI/1987-88 dated January 18, 198 The complaint, which is filed with the previous sanction of the Commissioner, is maintainable in so fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the books. The Tribunal, in paragraph 16 of the order (annexure IX), observed: "We will, therefore, treat it as an ordinary case and go first into the issue of reasons for rejection of the books of account. Shri Nair had fairly accepted before us that he would not press for acceptance of book results and a fair estimate may be made. Therefore, on concession from Shri Nair, we can treat it as a case where the proviso to section 145 would be applicable. Learned counsel appearing for the Revenue went on to submit that the order of the Tribunal, annexure-IX, brings out the fact that the books of account produced by the petitioner were rejected. I find much force in this argument. The accounts produced by the petitioner were not acted upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... survive. There is no case for levy of penalty under section 271 (1) (c) of the Act. The penalty order is cancelled accordingly." From this it is evident that the Commissioner of Income-tax (Appeals) was basing his decision solely on the findings of the Tribunal. Therefore, learned counsel appearing for the Revenue is well within his province when it is argued that the order of the Tribunal or of the Commissioner (Appeals) has not entered a finding that the return of income filed by the petitioner was correct. The question whether prosecution for offences punishable under sections 276C(1) and 277(i) of the Act and under sections 193 and 196, IPC, instituted by the Department while reassessment proceedings under the Act are pending, are l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated earlier, have not gone to state that the accounts produced by the petitioner and the return of income filed by him are correct. So, the criminal court has to go into the question as to whether the complainant succeeds in bringing out the offence charged against the petitioner. The second ground urged by the petitioner is answered accordingly. The criminal miscellaneous case is disposed of by quashing that part of the complaint relating to the offences under sections 193 and 196, IPC. The other offences alleged are to be enquired into and decided on the basis of evidence to be let in. The learned Magistrate is directed to dispose of C. C. No. 36 of 1988 in accordance with law as expeditiously as possible. - - TaxTMI - TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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