TMI Blog1976 (8) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... o materials in the complaint specifying the individual acts done by the other accused, nor is the group liability section invoked therein. There are in all six accused. First accused is the company. The 2nd accused is the managing director. Accused Nos. 3, 4 and 5 are the directors and A-6 is the secretary. The jurisdiction invoked in this application is the inherent jurisdiction of this court under s. 482, Cr. PC. The facts necessary for the disposal of this petition can be briefly stated as follows: The company filed before the ITO, Bombay, its return of income for the assessment year 1967-68 in respect of the accounting year ended March 31, 1967. The return was filed on December 30, 1967. During the course of the assessment proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a fictitious one invented by the accused for the purpose of making a false entry. The ITO, Special Circle, obtained the sanction of the Commissioner of Income-tax, Kerala, for filing the complaint under s. 279 of the I.T. Act. The complaint is dated 12th Jane, 1974, and the Chief Judicial Magistrate, Ernakulam, took it on file as C. C. No. 104 of 1974. The accused appeared before the Magistrate and challenged the maintainability of the complaint. The main question that was agitated before the Magistrate was about the non-maintainability of the complaint in so far as the complaint was not filed in compliance with the provisions contained in s. 340 of the Cr. PC, on the basis that the ITO is a court within the meaning of s. 195(1)(b) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision would have been a standing authority on the question now at issue before me. The task before me is, therefore, to see whether the effect of that decision has been taken away by the insertion of sub-s. (3) in s. 195 of the new Code. What the above decision lays down has been clarified by the Supreme Court in Balwant Singh v. L. C. Bharupal, ITO [1968] 70 ITR 89 at p. 94 as follows: " In view of these provisions, the majority view was that proceedings before the Income-tax Officer are judicial proceedings for the purposes of sections 193, 196 and 228 of the Penal Code and though the court did not go into the general question whether the officer is a court or not held that those proceedings must be treated as proceedings in a court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint there was after the new Code, the decision has laid down the correct law, although unaided by the observations of the Supreme Court and without adverting to the provisions contained in subs. (3) of s. 195. Now, I shall read s. 195(3) for a proper application of the case before me. It reads as follows: " 195. Prosecution for contempt of lawful authority of Public servants, for offences against public justice and for offences relating to documents given in evidence (3) In clause (b) of sub-section (1), the term 'court' means a civil, revenue or criminal court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a court for the purposes of this section. " Counsel for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, it has to be held that the ITO is not court within s. 195(1)(b). Therefore, the contention based on the non-conformity with s. 340 of the Cr. PC, on the ground that the ITO is a court, has to be negatived. The petitioner's counsel then contended that he is entitled to the protection given by the, Voluntary Disclosure of Income and Wealth Ordinance XXIII of 1975. According to him, the petitioner had made clean breast of all the wealth and had included the 30,000 rupees which is the subject-matter of the prosecution, when he made the disclosure. One looks in vain into the provisions of this Ordinance for any provisions which confers a benefit on the petitioner from prosecution which he has to face in order to enable this court to conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the declarant under the provisions of any of the said Acts." Thus, protection can be given only if the present prosecution comes within this specific provision. The present complaint is not one under the Acts mentioned in sub-cl. (4). This argument also is not available to the petitioner. The further contention raised is that, since in the appeal the original assessment was set aside, all the proceedings taken pursuant to that assessment should also be deemed to have been quashed. No argument is necessary to hold that prosecution of the kind that I have before me, has independent existence, irrespective of what happens to the assessment proceedings. There is a specific object in making these proceedings independent, for, where office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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