JUDGMENT 1. - By this petition, the petitioner has prayed that the proceedings in Cr. Case No. 36/85 be quashed. 2. The search proceeding was conducted at the premises of the petitioner on 20.5.83 and some documents and cash was seized. On the basis of that, the income of the assessee was estimated at Rs. 14,36,296/ in a summary manner U/s. 132(5) of the Income Tax Act (hereinafter, referred as the Act); In final assessment, the only addition of Rs. 6,000/- has been made instead of Rs. 14,36,296/-. After the addition, the steps were taken for penalty U/s. 271(1)(c) of the act and also filed complaint in the court U/s. 276(c) of the Act. The penalty of Rs. 3,648/- was imposed U/s. 271(1)(c) of the Act. That penalty finally was cancelled by the Income Tax Appellate Tribunal vide order date 16.6.92. That order has not been challenged. Thereafter, this petition has been filed by the petitioner on the ground that when no case of penalty was found U/s. 271(1)(c) of the Act, the proceedings in Cr. Case No. 36/85 be dropped. 3. Mr. Kasliwal submits that when there is no case of penalty u/s. 271 (1)(c) of the Act, there is no justification to continue the proceedings in complaint filed U/s. 276(c) of the Act, as there is no chance of conviction when the finding of the Tribunal has become final regarding concealment. 4. Mr. Amar Singh, learned counsel for the respondent submits that mere cancellation of the penalty U/s. 271(1)(c) of the Act cannot be the base for dropping the criminal proceedings in this case and in support of that, he placed reliance on the decision of Madras High Court in case of S. Vasudeva Rao v. R.S.J. Sigamany (1995 ITR 211 page 284) . 5. The facts are not in dispute that the penalty, so imposed in this case on the basis of addition of Rs. 6,000/- has been cancelled by the Tribunal observing that revenue has failed to make out a case for imposition of the penalty U/s. 271(1)(c) of the Act. It is true that mere cancellation of the penalty cannot be the sole ground for dropping the criminal proceedings on the basis of concealment of that very income, but, to prove a criminal case for punishment, the burden on department lies heavy than the burden lies in case to establish the case of penalty. It is true that mere cancellation of the penalty cannot be the sole ground for dropping the criminal proceedings on the basis of concealment of that very income, but, to prove a criminal case for punishment, the burden on department lies heavy than the burden lies in case to establish the case of penalty. Mere addition is not enough. 6. As stated above, the burden in case of criminal proceedings on the department is heavier than to prove its case in the penalty proceedings. Even then, if we go by the facts of this case, the authorities of the department have acted arbitrarily. After search, in an order U/s. 132(5) of the Act, the authority has estimated the concealed income at Rs. 14,36,296/- and in the final order U/s. 143(3) of the Act, they have added only Rs. 6,000/- in the income already disclosed. This shows arbitrary attitude of the departmental authorities to harass the assessee. 7. Even otherwise, mere addition in the income of the petitioner does not attract the penalty or prosecution automatically. When no case of penalty has been proved by the department and penalty U/s. 271(1)(c) has been cancelled, that prima facie shows that department has no case and all those arguments and grounds for cancellation of penalty which were considered and taken by the assessee in penalty proceedings are available to assessee even in criminal proceedings. In view of these facts, there is nil chance of conviction in this case. The petitioner is facing criminal proceedings since 1985. About 11 years have been lapsed and he suffered mental agony by facing this criminal trial since 1985. That is also some sort of punishment and when there is no chance of conviction, to continue such proceedings, will be against the interest of justice, and in my view, such proceedings should be dropped. 8. In the result, the criminal proceedings in Cr. Case No. 36/85 are herebyPetition allowed. *******