Khandelwal Constructions v. S. R. Dey, Income Tax Officer
1999-10-04
P.G.AGARWAL
body1999
DigiLaw.ai
This is an application under section 482 CrPC filed by the petitioner for quashing the Criminal Proceeding No. 316 (c) of 1992 initiated by the respondents-Income Tax Department and pending before the Chief Judicial Magistrate, Kamrup, Guwahati. 2. Heard Sri R. Gogoi, Senior Advocate for the petitioner and Sri K.P. Sarma appearing for the respondent. 3. The petitioner No. 1 is a partnership firm where petitioner Nos 2 to 6 are the partners. They filed a return for the year ending 31.8.1980. Subsequently, the assessee submitted a revised return of income, however, it was not accepted by the Income Tax Officer and a higher amount was determined by the Income Tax c Department, computation of total income included a sum of Rs. 82,000 being received by the assessee from certain persons. It has been stated that in their return that assessee firm made a cash credit for a sum of Rs. 1,70,000 in the name of 7 persons. The Income Tax Officer accepted the explanation submitted by the assessee in respect of four firm but rejected in respect of total sum of Rs. 82,000 as undisclosed income of the petitioners. The assessee firm preferred an appeal against the said order and Commissioner of Income Tax (Appeals) allowed the appeal by deleting of the said amount. However, said order was reversed by the Income Tax Tribunal (Appellate). Thereafter, the present complaint was filed alleging commission of offence under section 276C and 277 of the Income Tax Act, 1961. 4. The quashing of the complaint has been sought mainly on the ground that the complaint petition does not disclose commission of any offence, however, during course of arguments the learned counsel for the petitioner has submitted that the order of the Income Tax Tribunal (Appellate) has been reversed by this Court and as such the complainant has got no case for prosecuting the petitioner. There is no dispute at Bar that the above mentioned reference were decided in favour of the assessee which means that the addition of Rs. 82,000 out by the Income Tax Department held stands deleted. 5. The learned counsel for the respondents-Income Tax Department has submitted that even if this amount is taken out within the purview of the complaint petition, still there is some discrepancies/falsehood in return submitted by the petitioner.
82,000 out by the Income Tax Department held stands deleted. 5. The learned counsel for the respondents-Income Tax Department has submitted that even if this amount is taken out within the purview of the complaint petition, still there is some discrepancies/falsehood in return submitted by the petitioner. On perusal of the complaint petition I find that complainant has not stated as to what are the specific false statement alleged to have been made by the assessee and petitioners wilfully evaded the tax, only specific allegation is in respect of sum of Rs. 82,000 which is added as undisclosed income of the petitioners. The learned counsel for the petitioner on the other hand has referred to the authorisation under section 279 of the Income Tax Act ME Region for prosecution of the petitioner. In view of the decision of the Apex Court in the case of Md Iqbal Ahmed vs. State of Andhra Pradesh, AIR 1979 SC 677 , it is well settled that letter of sanction, consent for prosecution, authorisation of prosecution must contain the facts constituting the offence. In the above authorisation letter, the only allegation of the petitioner is in respect of addition of Rs. 82,000 as indicted above and as the said addition has been deleted by this Court, if this addition of Rs. 82,000 is taken out from the complaint petition, no other offence remains therein. The learned counsel for the respondent submits that at this stage complaint can not be thrown out. 6. Upon hearing the submissions made by the learned counsel of both sides and considering the facts and circumstances of the case, there is no scope for prosecuting the petitioner for the alleged addition of Rs. 82,000 in the total income from the period ending 31.8.1980. The complaint petition filed by the petitioners nowhere mentions any other offence either under section 276C or 277 of the Income Tax Act, 1961. 7. In the result, revision is allowed and proceedings in the case No. 316 of 1992 pending in the Court of the Chief Judicial Magistrate, Kamrup is hereby quashed.