JUDGMENT- Mrs. SUJATA MANOHAR, J.:---All these writ petitions are for a writ of certiorari against the respondents for quashing or setting aside criminal complaints which have been filed against the petitioners in each of the writ petitions and in the alternative for a writ of mandamus directing the respondents to withdraw and/or forbear from taking any steps in pursuance of criminal complaints which have been filed against the petitioners. 2. The facts are common to all these petitions. The petitioners in each of these petitions were originally the tenants of various premises in a building known as Shikhar Kunj situated at 29A Carmichael Road, Bombay- 400 026 which was owned by one M/s. Sahu Brothers (Saurashtra) Pvt. Ltd. The share capital in this company was held by some of the tenants. Each of the petitioners were paying a monthly rent to the said company. The premises were covered by the Bombay Rents Hotel Lodging House Rates (Control) Act, 1947. The said company entered into an agreement dated 10-3-1966 with another company known as Carmichael Properties Pvt. Ltd. for the sale of its entire property with a view that the building may be demolished and a new multi-storeyed building may be constructed by Carmichael Properties Pvt. Ltd., the latter being a wholly owned subsidiary of Sahu Brothers Pvt.Ltd. Prior to this agreement, the landlord namely Sahu Brothers Pvt. Ltd. entered into an agreement with the tenants which agreement is dated 7-1-1966. Under this agreement, the tenants agreed to vacate the premises occupied by them in Shikhar Kunj on condition that after the sale of the said property was completed and a new building was constructed, each of them would be put in possession of a flat in the new building on condition that they would pay the permissible standard rent in respect of the new flat as per the provisions of law. If, at any time after the amount of standard rent so payable was ascertained, the tenants desired to purchase the flats allotted to them in the new building on ownership basis, the new company would sell the flat to the old tenants at the capitalised value of the said standard rent, the value to be calculated at the rate of 71/2% yield per annum or at the cost price of the carpet area of the new flat, whichever was less. Until they were put in possession of the new flat, the old tenants were to pay Re. 1/- per month as nominal rent while the building was being demolished and the new building was being constructed. 3. Accordingly, the tenants vacated Shikar Kunj in January, 1966. The new building was completed some-time in the year 1971 and the tenants purchased the flats so alloted to them on payment of the agreed price as per the agreement of 7-1-1966. 4. Each of the tenants who are the petitioners before us in these petitions had filed their wealth-tax returns for the assessment years 1966-67 to 1971-72. In the original weath-tax returns filed by the petitioners they had not disclosed their tenancy rights in the said building as an asset liable to wealth tax. Between 27-3-1975 and 16-2-1978, notices were issued to them under section 17 of the Wealth-tax Act for re-opening wealth tax assessment of the petitioners for the assessment years 1966-67 to 1971-72. Between 27-10-1976 and 16-6-1978, the petitioners filed fresh wealth-tax returns for the above periods. By his order dated 31-3-1978, the Wealth-tax Officer held that the difference between the price at which the new flats had been sold to the petitioners and the price at which such flats in another wing of the said building had been sold to outsiders, should be considered as the value of the tenancy rights and this should be added to the wealth-tax returns of each of the petitioners' for the said assessment years. The petitioners filed appeals from this order of the Weath-tax Officer. In the meanwhile, Gift tax proceedings were also started against Carmichael Properties Pvt.Ltd. Ultimately, as a result of a meeting held between the Commissioner of Income-tax and the petitioners Chartered Accountant, it was decided that if the petitioners withdrew the appeals, the gift-tax proceedings would be dropped. The petitioners, accordingly, did not proceed with their appeals and the same were withdrawn. The gift-tax proceedings were also withdrawn. The petitioners contend that in any event, the quantum of wealth-tax so assessed was small and they did not wish to have a protracted litigation on this issue. 5. The Wealth-tax Officer, noting that the assesses had omitted the said asset from the wealth-tax returns, started penalty proceedings under section 18(1)(c) of the Wealth-tax Act for concealing particulars of the said asset in respect of the assessment years 1966-67 to 1971-72. 5. The Wealth-tax Officer, noting that the assesses had omitted the said asset from the wealth-tax returns, started penalty proceedings under section 18(1)(c) of the Wealth-tax Act for concealing particulars of the said asset in respect of the assessment years 1966-67 to 1971-72. In June, 1981 orders were passed levying penalty under secton 18(1)(c) against the petitioners for the assessment years 1966-67 to 1971-72. The petitioners filed appeals before the Commissioner (Appeals). They pointed out that they did not include the value of the said asset in their returns of wealth-tax in the bona fide belief that this did not constitute, in law, an asset for the purpose of wealth-tax. And hence there was no concealment of any asset on their part. The Commissioner (Appeals) accepted the contention and held that the appellants did not conceal their wealth or furnished inaccurate particulars thereof within the meaning of section 18(1)(c) of the Wealth-tax Act. He cancelled the penalty levied for all these years. 6. The department filed appeals before the Income-tax Tribunal. These appeals have been decided by the Tribunal by its order dated 12-8-1986 which order has been passed during the pendency of the present petitions. The Tribunal, after considering the facts at length, has come to the conclusion that for assessment purposes, a tenant's right to stay in a property under the protection of the Rent Control Acts is not by itself an asset includible in the net wealth. Even if it is property, it would be purely personal to the tenant and cannot have a market value under section 7 of the Wealth-tax Act. Having not treated tenancy itself as an asset, to treat it as an asset during the period when it was not there, and was substiuted by merely a right under the agreement of 7-1-1966, would be "the limit of absurdity". The Tribunal held that penalty for concealment requires the establishment of contumacious conduct on the part of the assessee. Looking to the facts of the present case, the assessees bona fide believed that this asset was not includible in their net wealth. The Tribunal, therefore, held that penalty under section 18(1)(c) could not be levied in these circumstances. Hence, the Tribunal upheld the order of the Commissioner (Appeals) setting aside the penalties so levied. 7. Looking to the facts of the present case, the assessees bona fide believed that this asset was not includible in their net wealth. The Tribunal, therefore, held that penalty under section 18(1)(c) could not be levied in these circumstances. Hence, the Tribunal upheld the order of the Commissioner (Appeals) setting aside the penalties so levied. 7. In the meanwhile, the Commissioner of Wealth tax also ordered prosecution of the petitioners under section 35A(1) and section 35D by his order dated 8-11-1983. Pursuant to this, the Wealth-tax Officer has registered complaints against the petitioners in the Court of the Metropolitan Magistrate, Esplanade, Bombay in respect of the offences alleged to have been committed by the petitioners under sections 35A(1) and 35D of the Wealth-tax Act. Section 35A(1) states that if a person wilfully attempts in any manner whatsover to evade any tax, penalty or interest chargeable or impossible under this Act, he shall be punished with imprisonment and fine as set out in that section. Section 35D provides that if a person makes a statement in any verification under this Act (other than section 34AB) or under any rule made thereunder, which he either knows or believes to be false, or does not believe to be turn, he shall be punishable as provided in that section. Both these sections require a wilful attempt on the part of the offender to evade tax or to furnish a false statement in verification. In the present case, the Tribunal has clearly come to a conclusion that there was no wilful attempt on the part of any of the petitioners either to furnish false wealth tax returns or to evade any tax. The Tribunal has held that the alleged asset was not included in the wealth-tax returns for the assessment years in question because the petitioners bona fide believed that the same did not constitute an asset which required disclosure in the wealth tax return. The Tribunal's findings in this regard and its judgment have become final. The department had applied for a reference from the above order and judgment but the Tribunal declined to draw a statement of the case and refer it to the High Court. The Tribunal's findings in this regard and its judgment have become final. The department had applied for a reference from the above order and judgment but the Tribunal declined to draw a statement of the case and refer it to the High Court. The department has also not shown to us any material which would indicate that they have applied to the High Court to have a statement of the case drawn up by the Tribunal or that the High Court has issued any such directions. In these circumstances, it is clear that the provisions of neither section 35-A(1) nor section 35-D are attracted in the present case. 8. Mr. Jetley, the learned counsel for the department has drawn our attention to the observations of the Supreme Court in the case of (P. Jayappan v. S.K. Perumal, First Income-Tax Officer, Tuticorin)1, reported in 1984, 149 I.T.R. page 696 to the effect that criminal proceedings are independent proceedings and a mere expectation of success in some proceeding in an appeal or a reference under the Income Tax Act cannot come in the way of the institution of criminal proceedings under section 276-C or section 277 of the Income Tax Act. This decision in our view does not help the department in any manner because in the present case, looking to the circumstances which are before us, not even a prima facie case of any offence having been committed under section 35-A(1) and section 35-D is made out; and we do not see why the petitioners should have to suffer the harassment of a criminal prosecution which is ultimately bound to fail. 9. Our attention was also drawn to the observations of the Allahabad High Court in the case of (Shiv Shankar Sitaram and others v. Income-tax Appellate Tribunal and others)2, reported in 1987, 168 I.T.R. page 275. The Allahabad High Court found that the submission of the petitioners that no offence had been committed by them on the basis of section 279(1-A) of the Income Tax Act, 1961 required investigation of facts which was not warranted in a writ petition. The Court observed that the petitioners would have a right to point out to the Magistrate before whom the case was pending that the facts did not establish any offence. The Court dismissed the writ petition for quashing criminal prosecution. 10. The Court observed that the petitioners would have a right to point out to the Magistrate before whom the case was pending that the facts did not establish any offence. The Court dismissed the writ petition for quashing criminal prosecution. 10. In the present case, however, no facts require any further investigation. The Tribunal has already come to a conclusion that there is no wilful evasion of any tax nor is there any deliberate false statement made in the verification clause to the wealth-tax return in question. There is therefore no basis for the prosecution. 11. In the case of (Uttamchand others v. Income-tax Officer, Central Circle, Amritsar)3, reported in 1982, 133 I.T.R. page 909, the Supreme Court on the basis of the findings given by the Tribunal in the appeal held that the partnership firm was genuine and quashed the criminal prosecution which had been launched against the petitioners therein for filing false returns. In the present case also, looking to the findings given by the Tribunal, the criminal prosecutions which have been launched against the petitioners are wholly unsustainable. The prosecutions are therefore quashed and the rule is made absolute in terms of prayer (b). The respondents to pay to the petitioners costs of the petitioners. Rule made absolute.