Judgment :- This petition under S.482 of the Code of Criminal Procedure is to quash annexure- i complaint in C.C. No. 84/1990 on the file of the Chief Judicial Magistrate (Economic Offences), Ernakulam. First petitioner is an assessee under the Income Tax Act, 1961 (for short 'the Act'), second petitioner is the Managing Director, third petitioner is one of the Directors and 4th petitioner is the General Manager of the first petitioner company. For the assessment year 1986-87 the first petitioner company filed return after deducting certain claims under the Act. Two such claims were depreciation and investment allowance under Ss.32 and 32-A of the Act in respect of two items of machineries. These two machineries were purchased on 5-3-1986 and 8-3-1986 respectively. If the said machineries were put to use during the accounting period, the two claims could be entertained. The assessing authority conducted enquiries and found that it was not used during the accounting year and hence the assessing authority completed the assessment rejecting the two claims. An appeal was preferred by the first petitioner company before the Commissioner of Income Tax; but he confirmed the order of assessment. The assessing authority had also initiated proceedings under S.271(1)(c) of the Act. In that after completing the necessary steps the authority passed an order-levying penalty. The order of assessment as well as the order-levying penalty were challenged by the company before the Income Tax Appellate Tribunal, Ernakulam. The Tribunal by annexure- II order allowed the two claims and set aside the order appealed against. annexure- i complaint is based on the assessment order as confirmed by the Commissioner of Income Tax. The department filed an application for reference under S.256(1) of the Act; that was also dismissed by the Tribunal by annexure- III order. 2. According to the petitioners, since the very basis of the prosecution thus is no longer in existence, the prosecution is not sustainable; consequently the same is liable to be quashed under S.482 of the Cr. P.C. 3. 2. According to the petitioners, since the very basis of the prosecution thus is no longer in existence, the prosecution is not sustainable; consequently the same is liable to be quashed under S.482 of the Cr. P.C. 3. It was contended by the learned counsel for the respondent, that the respondent has a right to file an application under S.256(2) of the Act for compelling the Tribunal to make the reference for which the period is six months and the same is yet to expire therefore the challenge is premature and that the grounds now raised are such that they could urge the same before the Criminal Court and hence they cannot, in the circumstance, invoke the jurisdiction of this court under S.482 of the Cr. P.C. 4. Learned counsel for the petitioners maintained that as matters now stand, the very basis of the prosecution is no longer exist as a result of annexures- II and III orders. According to him, in such circumstance annexure- i complaint is only an abuse of process and consequently the same has to be quashed. In the decision in Uttam Chand v. Income-tax officer, Central Circle, Amristar (133 ITR 909) a firm filed assessment for the year 1969-70, the Income Tax Officer cancelled the registration of the firm on the ground that the firm was not genuine, since one of the alleged partners stated that her signature in the records were not hers and that she was not a partner. The Tribunal found that she was in fact a partner of the firm and that the firm was genuine and set aside the cancellation of the order of the Income Tax Officer. In the meantime, the Income Tax Officer initiated prosecution against the firm under S.277 of the Act for having filed false returns. In a revision petition for quashing the prosecution against the firm the Haryana High Court held that the Tribunal's finding was not binding on the criminal court and the same cannot be a bar to the prosecution proceedings. The firm preferred appeal before the Supreme Court by Special Leave. The Supreme Court held, in view of the finding recorded by the Appellate Tribunal that she was a partner of the firm and that the firm was genuine, the assessee could not be prosecuted for filing false returns and quashed the prosecution. The firm preferred appeal before the Supreme Court by Special Leave. The Supreme Court held, in view of the finding recorded by the Appellate Tribunal that she was a partner of the firm and that the firm was genuine, the assessee could not be prosecuted for filing false returns and quashed the prosecution. In the subsequent decision of the Supreme Court in P. Jayappan v. S.K. Perumal, First Income-Tax Officer, Tuticorin (149 ITR 696) a search was conducted in the premises of the petitioner, several documents and account books which revealed suppression of purchase and other deposits were revealed. The return filed by the assessee thus was not true and correct. A complaint was filed against the assessee under Ss.271(1)(c), 273-A, 276-C, 277,279(1 a) of the Act and Sections 193 and 196 of the I.P.C. The assessee filed petition under S.482 of the Cr.P.C. to have the proceedings quashed contending that the launching of the prosecution was premature because the re-assessment proceedings started against him for these years has not been completed. The High Court dismissed the petition. The petitioner preferred a petition under Article 136 of the Constitution for Special Leave. The Supreme Court dismissed the petition holding that the pendency of the assessment proceedings could not act as a bar to the institution of the criminal prosecution for the offence under S.276-C or S.277 of the Act. In considering the said aspect the" Supreme Court in P Jayappan's case (149 ITR 696) at page 700 adverting to the case of Uttam Chand (133 ITR 909) observed: "It is true that, as observed by this court in Uttam Chand v. ITO (1982) 133 ITR 909, the prosecution once initiated may be quashed in the light of a finding favourable to the assessee recorded by an authority under the Act subsequently in respect of the relevant assessment proceedings but that decision is no authority for the proposition that no proceedings can be initiated at all under S.276C and S.277 as long as some proceeding under the Act in which there is a chance of success of the assessee is pending". Thus the decision in Uttam Chand's case (133 ITR 909) is re-affirmed by the Supreme Court. What is significant to be noted is, in this case no proceeding is now pending and there is a finding of the Tribunal in favour of the assessee. 5. Thus the decision in Uttam Chand's case (133 ITR 909) is re-affirmed by the Supreme Court. What is significant to be noted is, in this case no proceeding is now pending and there is a finding of the Tribunal in favour of the assessee. 5. The Punjab & Haryana High Court also has held in the decision in Parkash Chand v. Income Tax Officer, A - Ward, Sonepat (134ITR 8) that in view of the finding of the Tribunal that there was no concealment the criminal prosecution against the assessee is liable to be quashed. The fact that the finding of the Tribunal in favour of the assessee would take away the very basis of the prosecution is reiterated in the decision of the Supreme Court in K. T.M.S. Mohamyied v. Union of India (197 ITR 196) where it is observed at page 219: "In the present case, on two occasions, the Tribunal has held that the amount of Rs. 6 lakhs was not owned by the first appellant. In exhibit D-4, the Tribunal has further held that S.69 A dealing with unexplained money, etc., has no application to the facts of the case. Taking this finding of the Tribunal into consideration, we arc constrained to hold that the appellants cannot be held to bes liable for punishment under S.12013 read with S.277 and S.277 (simpliciter) of the Income-tax Act, 1961, as the very basis of the prosecution is completely nullified by the order of the Tribunal which fact can be given due regard in deciding the question of the criminal liability of appellants Nos.1 and 2". These decisions would show that the finding of the Tribunal since is in favour of the assessee the same would take away the very basis of annexure- i complaint. But the learned counsel for the respondent relied on the decision of the Madras High Court in Hema Mohnot v. State by Chief Commissioner of Income Tax (Admn.) (198 ITR 410) to content that, in such circumstance the proper procedure is not to invoke the jvri; diction under S.482 of the Cr. P.C. to quash the proceedings; but the proper forum is the Criminal Court itself where an assessee could prove that the prosecution is not sustainable. In that case the prosecution had reached the stage of questioning the accused under S.313(a) of the Code. P.C. to quash the proceedings; but the proper forum is the Criminal Court itself where an assessee could prove that the prosecution is not sustainable. In that case the prosecution had reached the stage of questioning the accused under S.313(a) of the Code. The decision is distinguishable on facts and also is not in accordance with Uttam Chand's case (133 ITR 909). 6. The only other question that remains to be considered is contention of the respondent that since the period of six months under S.256 (2) of the Act has not expired, on the basis of the order of the Tribunal relief under S.482 Cr.P.C. cannot be allowed. Learned Counsel for the respondent relied on the decision in Commissioner of Income Tax v. Bansi Dhar & Sons (157 ITR 655). In that the Supreme Court held that for staying the recovery pending reference before the High Court or Supreme Court, the assessee should apply before the appellate authority. In that it is observed until the reference is answered the appeal is kept pending and that the jurisdiction of the High Court is purely adivsory. But here the question for consideration is, with due regard to the scope of S.256(2), in the context of the order of the Tribunal in favour of the assessee whether it is necessary to quash the criminal proceeding to secure the ends of justice. This Court in Crl.M.C.1047 of 1991 invoked the jurisdiction under S.482 of the Cr.P.C. and quashed the complaint where the prosecution was launched against the assessee under S.276 C (1) and 277 read with S.278-B of the Act. In that case the orders on the basis of which the complaints were laid were set aside by the Tribunal and reassessment was ordered. This court quashed the complaints without prejudice to the right of the respondent to file fresh application in the light of the result of the reassessment proceedings. 6. In the decision in Kohli v. C.I.T. (152 ITR 154) Tribunal's decision was in favour of the assessee, application by the department under S.256(1) of the Act was rejected and application under S.256(2) of the Act was pending. 6. In the decision in Kohli v. C.I.T. (152 ITR 154) Tribunal's decision was in favour of the assessee, application by the department under S.256(1) of the Act was rejected and application under S.256(2) of the Act was pending. As complaint against the assessee under Ss.277 and 278 of the Act and Ss.193 and 196IPC was quashed; but clarified that if the application made under S.256(2) of the Act is allowed, the complaint will be treated as pending and the Income Tax Officer will be entitled to revise the complaint. Again in the decision in Bhasin v. Union of India (171 ITR 7) on the basis of the decision of the Commissioner of Income Tax (Appeals) in favour of the assessee, criminal proceedings pending against the assessee was quashed, providing that in case the order of the Commissioner of Income Tax (Appeals) is set aside, the revenue will be entitled to file fresh complaints. The said view is in accordance with the decision of this court in Crl. M.C. 1047 of 1991. The revenue has not yet filed reference under S.256(2) of the Act. In view of the fact that, so long as the decision of the Tribunal is in force the criminal court cannot come to a contrary conclusion; as the effect of the decision of the Tribunal is to take away the very basis of the prosecution, the prosecution is liable to "'be quashed safeguarding the right of the revenue to file fresh complaint in case the order of the Tribunal is set aside consequent upon the decision under S.256(2) of the Act. Therefore, annexure- i complaint is quashed without prejudice to the rights of the respondent to file fresh complaint if the order of the Tribunalisset aside consequent upon an order under S.256(2) of the Act. In the result the Crl. M.C. is allowed as indicated above.