Judgment Aftab Alam, J. The petitioner, in this application, challenges an order, dated 30.09.91, passed by the Special Judge (Economic Offences), Muzaffarpur, in Complaint Case no. 424 of 1991 (Trial No. 2427 of 1991) whereby he took cognizance of offences under Sections 276C and 277 of the Income Tax Act, 1961, and summoned the petitioner to face trial. The order taking cognizance was passed on a complaint filed by the second respondent and the allegations relate to the income tax return filed by the petitioner for the assessment year 1980-81. 2. At the centre of the controversy is a private clinic named as Hai Clinic. According to the petitioner, it was owned and run by his wife, Mrs. Hasmat Hai, and she, as its proprietor, used to show the income derived from the clinic in the returns of income filed by her. Accordingly, the petitioner in his return for the year 1980-81 did not show any income from the clinic and declared a sum of Rs.17,400/- as his total income from medical profession. The Assessing Officer, however, held that the income derived from the clinic exclusively belonged to the petitioner and in no case could it be treated as the income of his wife. He, therefore, added the income from the clinic (Rs.1,25,000/-) to the income shown by the petitioner in the return filed by him and passed the assessment order on that basis. 3. The petitioner preferred an appeal before the C.I.T. (Appeals). The appellate authority accepted that the income from the clinic was Rs.50,000/- only (and not Rs.1,25,000/-) but did not interfere with the finding that the income from the clinic was, in fact, income in the hands of the petitioner. The second appeal filed by the petitioner was rejected by the Income Tax Appellate Tribunal (ITAT), Patna Bench. The Tribunal also turned down his application for making a reference to the High Court in terms of Section 256 (1) of the Act and finally his application under Section 256 (2) of the Act was dismissed by the High Court. 4. On the basis of the aforesaid facts and circumstances it was alleged in the complaint that the petitioner had wilfully attempted to evade tax by concealing the true particulars of his income and deliberately made a false verification in the returns of his income. 4. On the basis of the aforesaid facts and circumstances it was alleged in the complaint that the petitioner had wilfully attempted to evade tax by concealing the true particulars of his income and deliberately made a false verification in the returns of his income. He, thus, committed offences punishable under Sections 276C and 277 of the Income Tax Act, 1961. 5. Mr. K.N. Jain, learned counsel appearing on behalf of the petitioner, assailed the order taking cognizance on various grounds. However, I do not propose to examine all his submissions as, to my mind, this application is fit to be allowed in view of the development taking place during its pendency before this Court. 6. It may be noted that the controversy regarding the income from the clinic also cropped up in the proceedings for the subsequent assessment years. Mrs. Hasmat Hai continued to declare the income from the clinic in her returns for assessment years 1981-82 and 1982-83; the petitioner (as for assessment year 1980-81) did not show any income from the clinic in the returns for these two years. The Assessing Officer, following his order for the assessment year 1980-81, did not accept the petitioner's plea that the income from the clinic did not belong to him and insisted on adding up the income from the clinic to his income. However, in the proceeding relating to the assessment year 1981-82 the I.T.A.T. accepted the petitioner's stand that it was his wife and not he who was the proprietor of the clinic and any income from the clinic lawfully belonged to his wife and could not be added on to his income. He accordingly, set aside the orders passed by the Assessing Officer and the appellate authority and remitted the matter back to the Assessing Officer. At that time the proceeding relating to the assessment year 1982-83 was pending before the appellate authority who, following the order of the I.T.A.T. in the case relating to the assessment year 1981-82, also set aside the assessment order for the year 1982-83 and remitted the matter back to the Assessing Officer. On remand the Assessing Officer examined in detail the entire facts and circumstances brought to his notice and by order, dated 23.03.94, passed in the case of Mrs. On remand the Assessing Officer examined in detail the entire facts and circumstances brought to his notice and by order, dated 23.03.94, passed in the case of Mrs. Hasmat Hai for the assessment year 1982-83 upheld the contention that she was the proprietor of the clinic and any income from it was to be taxed in her hands. In paragraph 29 of this order it was observed as follows : "On the basis of the fresh evidence and the evidence not considered earlier, it cannot be said that the Nursing Home belongs to Dr. A. Hai. The Nursing Home belongs to Mrs. Hasmat Hai. Her income is to be taxed in her hands. Her income shall not be added in the income of her husband." A copy of the order, dated 23.03.94, has been brought on record as Annexure 6 to the supplementary affidavit filed on behalf of the petitioner. 7. The petitioner's case for the assessment year 1982-83 was disposed of by a brief order in the following terms, following the order passed in the case of his wife: "The assessee has filed return on 30.09.82 declaring income of Rs.19,850/-. The case was set aside in appeal. The details are given in the assessment under Section 143 (3) of even date for assessment year 1982-83 in the case of Mrs. Hasmat Hai." 8. It is, thus, manifest that the stand of the petitioner that the proprietor of the clinic was his wife and any income derived from the clinic lawfully belonged to her was vindicated, though in course of assessment for the subsequent years. 9. Mr. K.N. Jain, learned counsel appearing on behalf of the petitioner, submitted that the acceptance of the petitioner's case by the Revenue authorities that the clinic was owned by Mrs. Hasmat Hai and any income derived from it could be taxed in her hands knocked down the very basis on which the complaint was founded and no criminal proceeding could, therefore, be sustained against the petitioner. In support of his submission, learned counsel, relied upon a decision of the Supreme Court in C.L. Didwania Vs. Income Tax Officer, 1995 Supp (2) S.C.C., 724. In this decision the Supreme Court held as follows : "Para-3 : Mr. In support of his submission, learned counsel, relied upon a decision of the Supreme Court in C.L. Didwania Vs. Income Tax Officer, 1995 Supp (2) S.C.C., 724. In this decision the Supreme Court held as follows : "Para-3 : Mr. R.K. Jain, learned Senior Counsel, submits that the averments in the complaint would clearly show that the prosecution was sought to be launched on the basis that the appellant wrongly and falsely declared that the income of M/s Young India and Transport Company does not belong to him and that he made a false verification to that effect and the income of M/s Young India and Transport Company does belong to him and by failing to include the said income of M/s Young India and Transport Company in his income amounted to suppression and thus liable under Section 277 of the Income Tax Act and that in view of the fact that in the order of the Appellate Tribunal those conclusions reached by the assessing authority have been set aside; consequently the very basis of the complaint is knocked out and therefore, in the interest of justice the proceedings ought to have been quashed by the High Court. In support of his submission, he also relied on a judgment of this Court in Uttam Chand v. Income Tax Officer, Central Circle, Amritsar, wherein this Court quashed the prosecution. It was observed in that decision that it would be clear from the order of the tribunal that the assessee was a partner of the firm and the firm was a genuine firm. There is a reference to this judgment in another decision of this Court in P. Jayappan v. S.K. Perumal, First Income Tax Officer, Tuticorin. "Para-4 : In the instant case, the crux of the matter is attracted and whether the prosecution can be sustained in view of the order passed by the tribunal. As noted above, the assessing authority held that the appellant-assessee made a false statement in respect of income of M/s Young India and Transport Company and that finding has been set aside by the Income Tax Appellate Tribunal. If that is the position then we are unable to see as to how criminal proceedings can be sustained." 10. Mr. As noted above, the assessing authority held that the appellant-assessee made a false statement in respect of income of M/s Young India and Transport Company and that finding has been set aside by the Income Tax Appellate Tribunal. If that is the position then we are unable to see as to how criminal proceedings can be sustained." 10. Mr. Saran, learned counsel for the revenue, submitted that the complaint against the petitioner related to the assessment year 1980-81 whereas the finding that the nursing home belonged to Mrs. Hasmat Hai and any income from it, therefore, was arrived at in course of the proceeding for the assessment year 1982-83. The petitioner, therefore, cannot derive any support from this finding for assailing his prosecution on the basis of the complaint. 11. I am unable to accept this submission. It is indeed true that the proceeding in relation to the assessment year 1980-81 attained finality after the dismissal of the applications filed by the petitioner in terms of Sections 256 (1) and 256 (2) of the Act, However, the consequence of that proceeding having attained finality would be that the question relating to the tax payable by the petitioner for that year can no longer be re-opened and altered. But the issue before the Court in this writ petition is slightly different and the main question for consideration is whether the petitioner can be accused of having wilfully attempted to evade tax or having made false verification etc. by his action in not showing any income from the clinic in the return of his income for the assessment year 1980-81. In this regard, it is important to note that the finding recorded in the assessment order, dated, 23.03.94, was arrived at not on account of any material change in the facts and circumstances relating to the clinic and a perusal of the order makes it quite clear that the material facts and circumstances relating to the clinic remained the same as they were in the assessment year 1980-81 but the Assessing Officer came to a different finding by taking into consideration the evidence, which, had not been considered in the proceedings for the earlier assessment year and some fresh evidence which were, perhaps, not adduced earlier. 12. 12. I am, therefore, of the view that in so far as the question of the income derived from the clinic is concerned the finding recorded for assessment year 1980-81 must yield to the later finding recorded in the assessment order for the assessment year 1982-83. 13. Looking at the matter from a slightly different point of view I find that in the light of the finding recorded and the assessment order passed for the assessment year 1982-83 it must be held that the action of the petitioner in not showing any income from the clinic did not amount to any wilful attempt to evade tax or to make a false verification etc. and, therefore, no case is made out for offences under Sections 276C and 277 of the Income Tax Act. Therefore, any continuance of the prosecution on the basis of the impugned order of cognizance would amount to an abuse of the process of the court. The impugned order, dated 30.09.91, taking cognizance against the petitioner is, accordingly, quashed. 14. I n the result, this application is allowed. No order as to costs.