TMI Blog1988 (2) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year 1977-78. It is the further case of the writ petitioner that up to May 20, 1982, Sri Kanailal De, respondent No. 1, was the assessing authority and from May 20, 1982, he was transferred to the post of Income-tax Officer, " B " Ward, District IV(I), Calcutta. Further, it has been alleged in the writ petition that there was some misunderstanding over the use of the lift between the writ petitioner's representative and the concerned Income-tax Officer, being respondent No. 1 herein, in the main block of S. S. K. M. Hospital, where the petitioner was then working as surgeon in charge of the plastic surgery department, which caused annoyance to respondent No. 1, and the said respondent No. 1 took vengeance in the assessment cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said letter was duly shown to the Commissioner of Income-tax (Appeals) (i.e., the appellate authority) and the appellate authority, on consideration and appreciation of the facts, retained the addition of Rs. 5,200 on account of the parties whose names are set out in paragraph 4 of the said order of the Commissioner. That apart, the appellate authority took into account the relevant fact that the petitioner performed many free operations in hospitals and there were 630 operations made on " professional grounds " (even some of them are also free because of their relations with the petitioner and because of their connections in the medical line) of which only 5 cases were omitted and one case was not to his knowledge, just as the one in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal was of the opinion that since the Commissioner of Income-tax (Appeals) deleted the additions after considering the explanation given by the assessee and since the Commissioner of Income-tax (Appeals) had thoroughly examined the entire factual aspect of the matter, there was no necessity for interference with the order of the Commissioner of Income-tax (Appeals). In these circumstances, the writ petitioner was served with the summons dated April 19, 1982, in the Complaint Case No. C/1323 of 1982, purportedly under section 277 of the Income-tax Act (State v . Dr. Morari Mohan Mukherjee) to appear before the Chief Metropolitan Magistrate, respondent No. 4, on June 8, 1982, which has been impugned in the instant writ petition as annexure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, i.e., the Commissioner of Income-tax (Appeals) and further, the appeal preferred by respondent No. 1 before the Tribunal having been dismissed, respondent No. 1 had no competence or jurisdiction to proceed against the writ petitioner in respect of the purported proceeding in Complaint Case No. C/1323 of 1982, by filing a petition of complaint before the learned Chief Metropolitan Magistrate on March 31, 1982. Further, after placing the order of the Commissioner of Income-tax (Appeals) and the order of the Appellate Tribunal, in detail, from pages 77, 80, 82, 83, 84 and 86 of the writ petition, Mr. Sanjoy Bhattacharya submitted that in view of the order of the Commissioner of Income-tax (Appeals)-X, Calcutta, dated August 20, 1981, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et aside by the Appellate Assistant Commissioner, it could not be said that the assessment was still continuing. In the eye of law, when the assessment order itself was not in existence, the question of maintaining prosecution did not arise. Therefore, the prosecution proceedings were liable to be set aside. In my opinion, the facts of the said case are not at par with the facts of the present case and cannot help the petitioner, as the assessment, as modified by the Commissioner of Income-tax (Appeals), is still there. As the Commissioner of Income-tax (Appeals) has modified certain findings of the Income-tax Officer regarding deliberate omission and failure on the part of the assessee in the appellate order, that portion may be treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the statements filed by him along with the original return for the assessment year 1977-78, in which he had disclosed an income of Rs. 13,380. On the allegation that the petitioner had deliberately filed a " false return " and had " kept false accounts " with the intention of using them as genuine evidence in the assessment proceedings, a complaint was filed against him in the Court of the Additional Chief judicial Magistrate for taking action against him for offences punishable under section 276 (wilful attempt to evade tax) and section 277 (false statement in verification) of the Income-tax Act, 1961, and section 193 (punishment for false evidence) and section 196 (using evidence known to be false) of the Indian Penal Code. The Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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