Judgment PIYUSH MATHUR, J ( 1. ) The Union of India through its Income Tax Department has preferred this Criminal Appeal against the Partners of a Partnership Firm M/s. Jiwan Lal Chironji Lal, who had been acquitted by the IVth Additional District Judge, Gwalior in Criminal Case No. 103/ 2001 (Chironji Lal and Others Vs. Union of India) vide its Judgment Dated 05.08.2002, whereby the Appellate Court has passed an Order of Acquittal by setting aside the Order of Conviction passed by the IInd Additional Chief Judicial Magistrate, Gwalior in Criminal Case No. 197/2001, wherein the accused persons were convicted for the offence punishable in terms of Section 276-C, 277 and 278 of the Income Tax Act (herein after referred to as the Act). ( 2. ) The facts emerging out of the record demonstrate that M/s. Jiwan Lal Chironji Lal, was a Partnership Firm which had filed its Income Tax Return for the Assessment Year 1980-81, in relation to their business transaction of the Financial Year 1978-79 where the Income of the Firm was disclosed to be Rs. 73,050/-, which was accepted by the Income Tax Officer, Shivpuri vide Assessment Order Dated 26.03.1981, passed in terms of Section 143(1) of the Income Tax Act. ( 3. ) The case of the Revenue as emerges from the record further disclose that during the Assessment of Financial Year 1981-82, it was found that an amount of Rs. 28,297/- was received by the Partnership Firm, from the Sales Tax Department, as a Refund of Sales Tax, by an Order of the Sales Tax Officer Dated 14.05.1979, but the receipt of this amount of Rs. 28,297/- was not disclosed by the Assessee Firm, in its Income Tax Return of the year 1980-81, therefore, for the purpose of reassessment of the Firm (in terms of Section 148 of the Income Tax Act), a Notice was issued under Section 147 (A) on Date 17.02.1984 and in compliance to the Notice, the Assessee Firm had submitted a Revised Return on Date 06.06.1985 by showing their Income to be Rs. 94,175/-, wherein the amount of refund received from the Sales Tax Department was also included. ( 4. 94,175/-, wherein the amount of refund received from the Sales Tax Department was also included. ( 4. ) The Income Tax Officer, Shivpuri, while passing the Re-Assessment Order on Date 10.03.1986 determined the liability of the Assessee Firm and soon thereafter proceedings for imposing penalty was initiated as per Section 271 (1)(c) of the Income Tax Act and a penalty of Rs. 20,000/- was imposed on the Firm by Order Dated 23.03.1988. The record further reveals that the Penalty Order was challenged in an Appeal, however the Appellate Tribunal did not find any ground to interfere in the Order of penalty and consequently the Appeal was dismissed by Order Dated 12.12.1989, by confirming the Order of imposition of the penalty on the Firm. ( 5. ) Soon after the Judgment of the Appellate Authority, the Income Tax Department had submitted a Criminal Complaint before the competent Criminal Court on Date 28.03.1990 against the Partners of the Partnership Firm for securing their Conviction under Section 276 (C) of the Act and after conclusion of the Trial, Learned Ilnd Additional Chief Judicial Magistrate, Gwalior had found that the Partners of the Partnership Firm had willfully and deliberately concealed the income, which they received on account of refund of tax from the Sales Tax Department, by not making declaration of this Income, although the amount was received by the Firm on Date 14.05.1979 when they failed to include the same in their Income Tax Return filed for the Financial Year 1980-81. ( 6. ) The Partners of the FIrm preferred a Criminal Appeal before the Sessions Court, Gwalior by challenging the Judgment and conviction passed on Date 29.08.2001, whereby the Partners were convicted under Sections 276-C, 277 and 278 of the Act, wherein the IVth Additional Sessions Judge, Gwalior, while deciding the Criminal Appeal found that there was no deliberate concealment of the income, as the amount of refund was not actually received by the Partnership Firm, as the refund amount was adjusted in the subsequent liability of the Firm with the Sales Tax Department itself and soon upon getting the information of the grant of refund by the Sales Tax Department, the details of the income were presented to the Assessing Officer. The Appellate Court, while discussing the evidence in detail had passed an Order of acquittal on Date 05.08.2002 in Criminal Appeal No. 103/2001 against which, the present Criminal Appeal has been filed on behalf of the Union of India. ( 7. ) I have heard Shri Sangam Jain, Advocate for the Appellant-Union of India and I have also heard Shri Anil Mishra, Advocate for the Respondents and have also perused the record of the Courts below and have considered the submissions orally advanced during the course of hearing of this Criminal Appeal. ( 8. ) Shri Sangam Jain, Learned Counsel for the Appellant-Union of India submits that the complaint was filed well within time period prescribed under Section 276-C of the Act, by computing the period of three years from the date of imposition of the penalty on Date 23.03.1988 and thereafter from the Date when the Appellate Tribunal affirmed the Order of penalty by Order Dated 12.12.1989. Shri Sangam Jain had also raised a preliminary grievances about the manner in which the appeal was disposed of by the First Appellate Court, without securing presence of the Counsel for the Income Tax Department (in view of non-authorization of the Government Advocate who usually appears on behalf of the State Government) to demonstrate that the appeal has been disposed of without affording an opportunity of hearing to the Union of India. ( 9. ) Shri Sangam Jain submits that the Firm had received information about the Refund Order of the Sales Tax Department, much before filling of the return for the Financial Year 1978 and 1981, therefore, the Partners of the Firm had willfully and deliberately made calculated attempt of concealing its income in their return. Shri Jain vehemently argued that the conduct of the Partners reflect from the record itself as the disclosure of the income through Sales Tax return was admitted by the Assessee Firm, only when a Notice under Section 147 (A) of the Act was issued to the Firm, for reassessment and only after filing of a Revised Return (which included the amount received from the Sales Tax Department), the Income Tax Department could determine/reassess the liability of the Assessee Firm and this circumstance alone bring the Firm into the net of penal provisions contained in Section 276-C of the Act. ( 10. ( 10. ) Shri Anil Mishra, Learned Counsel appearing for the Assessee Firm submits that the Firm has made a categorical disclosure in their Income Tax Return about the pendency of the assessment proceedings before the Sales Tax Department and soon upon receiving the details of the Refund Order Dated 14.05.1979, the Assessee Firm had included the amount of refund in its Revised Return and as such there was no willful concealment or deliberate attempt of concealment of the Income. Shri Mishra further submits that under the Refund Order Dated 14.05.1979, no cash amount was actually transmitted by the Sale Tax Department to the Assessee Firm, as the refund amount of Rs. 28,297/- was adjusted by the Sales Tax Department in the existing Tax Liability of the Firm and since no cash was received in the account, there could be no element of mens rea in the action or omission of the Partners of the Partnership Firm, which could warrant invocation of the penal provisions or initiation of the proceedings to secure conviction of the Partners. ( 11. ) Shri Anil Mishra further submits that there exist no deliberate concealment of the income received through Sales Tax Refund Order as it could only be treated to be an escaped income, which could not be included at the time, when the Income Tax Return was filed, for the Financial Year 1980-81. He further submits that even when the Income Tax Department had issued a Notice under Section 147-A of the Act, with a view to reassess the income, the Assessee Firm is lawfully entitled to explain to the Department, the circumstance in which the income escaped from being incorporated / included in the previously filed Return. ( 12. ) Shri Anil Mishra, while explaining the meaning of "Willful Concealment" has argued that unless the act or omission of the Assessee is prima facie negligent or suffers from apparent mala fide or actuated with such mens rea that the same could be evaluated from the conduct of Assessee and all these elements are adequately established by the Department, no inference could be drawn about suppression or concealment of the Income, in a willful manner as required for proving the offence under Section 276-C of the Act. ( 13. ( 13. ) Shri Mishra has drawn my attention to the provisions contained in Article 20 of the Constitution of India and Section 300 of the Cr.P.C. to demonstrate that since the Penalty was imposed by the Assessing Officer, on account of alleged concealment of Income and the same was deposited, therefore no prosecution could have been launched against the Partners of the Assessee Firm, as the same would be hit by the principles of double jeopardy. ( 14. ) Shri Mishra further submits that while passing the Judgment of acquittal, the Appellate Court has not only passed the Judgment on the point of Limitation but has also addressed to the merits of the matter and after due deliberation and evaluation of the facts of the case, the Appellant Court has found that there exists no concealment of Income, which could be treated to be willful concealment in the eyes of the Law. ( 15. ) Shri Mishra has also argued on the maintainability of the present Criminal Appeal on the ground that no Second Appeal is provided either in the Income Tax Act or in the Code of Criminal Procedure after passing of the Order of acquittal by the Sessions Court and since Section 378 (4) of Cr.P.C provides for preferring an Appeal against the Original proceedings which ends in conviction of an accused person, therefore in absence of a provision for preferring an Appeal against the Order of acquittal passed in an Appeal, the present appeal would not be maintainable. ( 16. ) The contention of Learned Counsel for the respondents prima facie appears to be attractive when Section 378 Cr.P.C. is perused (as it was existing at the time when the Appeal was filed in the year 2001) and certainly a Criminal Revision would have been maintainable against the Judgment of acquittal but in view of the amendment incorporated in Section 378 (4) of Cr.P.C. in the Year 2005 (by Criminal Amendment Act No. 45/2005), it is found that the Criminal Appeal against an Order of acquittal passed in Appeal would be maintainable, at the instance of Central Government or State Government, therefore, this argument has no merit. ( 17. ( 17. ) A perusal of the entire evidence place on record by the Union of India demonstrate that the Assessment of the Firm was initially made, based upon declaration made by the firm, wherein the fact of pendency of the proceedings before the erstwhile Sales Tax Department was disclosed, which alone enabled the Income Tax Department to issue Notice under Section 147-A of the Income Tax Act, soon upon forwarding of Refund Order Challan from the Sales Tax Department to the Firm. It has also emerged on record that immediately after receiving Notice from the Income Tax Department, the Assessee Firm had submitted a revised supplementary return by disclosing the fact of receipt of the Sales Tax Return and accordingly the Assessee Firm was re-assessed, where the penalty was also ordered. Therefore from perusal of the entire evidence as also the attending circumstances, it nowhere reflect that the Assessee Firm was ever having any criminal intention of concealing income, received through the refund of Rs. 28,297/- from the Sales Tax Department, more particularly in the background, when no cash transaction was made in relation to Rs. 28,297/-, since this amount was adjusted in the existing Sales Tax liability of the Firm by the Sales Tax Department. ( 18. ) The record also demonstrates that while reassessing the return of the Assessee Firm, subsequent to the issuance of the Notice issued under Section 147-A, the Assessment Officer has imposed penalty of Rs. 20,000/-and the Assessee Firm had challenged the Order of penalty in Appeal and the Assessment Order was not challenged which further goes to demonstrate the bona fide of the Assessee Firm. Therefore there exist no element of criminal intention of the Assessee Firm, which could bring it within the clutches of Section 276-C of the Income Tax Act, therefore this Court is of the considered view that the Appellate Court has not committed any error of law or jurisdiction, while passing an Order | of acquittal. ( 19. ) The Supreme Court while dealing with somewhat similar situation has examined the objectivity and necessity of initiating a criminal action under Section 276-C of the Income Tax Act and has found that when there is no act of concealment, on the part of the Assessee, then the ingredients of the offence prescribed under Sections 276-C and 277 of the Income Tax Act would not be attracted. This Judgment reported as (1999) 5 Supreme Court Cases 241 Prem Dass Vs. Income Tax Officer conclude the controversy in paragraph Nos. 8 and 9 of the Judgment which are quoted herein below: "8. Wilful attempt to evade any tax, penalty or interest chargeable or imposable under the Act under Section 276-C is a positive act on the part of the accused which is required to be proved to bring home the charge against the accused. Similarly a statement made by a person in any verification under the Act can be an offence under Section 277 if the person making the same either knew or believed the same to be false or did not believe to be true. Necessary mens rea, therefore, is required to be established by the prosecution to attract the provisions of Section 277. We see nothing in Section 132(4-A) which would establish the ingredients of the aforesaid two criminal offences contemplated under Sections 276-C and 277 of the Indian Income Tax Act. It may be noticed at this point of time that the Tribunal, while interfering with the penalty imposed under Section 271(1-C) of the Act came to a positive finding that there is no act of concealment on the part of the assessee and he had returned the income on estimate basis. The Tribunal further found that it is a case purely on difference of opinion as to the estimates and not a case of concealment of income or even furnishing of inaccurate particulars of income. 9. In the aforesaid premises, the High Court was totally in error in interfering with the order of acquittal passed by the learned Sessions Judge by an elaborate and well reasoned judgment .We have no hesitation to come to the conclusion that the ingredients of offence under Sections 276-C and 277 of the Income Tax Act have not been established by the prosecution beyond reasonable doubt, and therefore, the appellant cannot be convicted of the offence under the said sections." ( 20. ) This Court had also examined the scope and extent of application of provisions contained in Sections 276-C, 277 and 278 of the Income Tax Act and has found that unless there exist a deliberate intention of concealment of income, on the part of the Assessee, the conviction could not be sustained. These Judgments are reported as 2002 (5) MPU 449 Raghunath Prasad Mohanlal and Ors. Vs. These Judgments are reported as 2002 (5) MPU 449 Raghunath Prasad Mohanlal and Ors. Vs. Union of India and Another, 2006 (2) MPLJ 18 Kusumchand Sharadchand and Another Vs. Union of India and Another and 2009 (1) MPLJ 528 Harkawat and Company and Ors. Vs. Union of India. ( 21. ) The Supreme Court of India in its Judgment reported as (2004) 2 Supreme Court Cases 731 K.C. Builders and Another Vs. Assistant Commissioner of Income Tax has very clearly observed that when the assessment is set aside, penalty automatically goes and this Judgment continue to hold good in relation to the ratio decidendi about Section 276-C of the Income Tax Act, although on other point, the ratio of this Judgment has been doubted by the Supreme Court in its subsequent Judgment reported as (2006)4 Supreme Court Cases 278 Standard Chartered Bank and Ors. Vs. Directorate of Enforcement and Ors. and has further distinguished this case in another case reported as (2006) 13 Supreme Court Cases 252 State through CBI Vs. Sashi Balasubramanian and Another, but the fact remains that ratio of K.C. Builders (supra) in relation to Section 276-C of the Income Tax Act has been found to be correct in a latter Judgment of the Supreme Court which is reported as (2007) 7 Supreme Court Cases 162 T. Ashok Pai Vs. Commissioner of Income Tax, Bangalore, wherein the Supreme Court has observed that when the Department has sought better particulars and the Assessee has submitted a revised return, therefore the enabling provisions contained in Section 271 of the Income Tax Act could not be invoked against him. ( 22. ) From the minute analysis of the aforesaid Judgments of the Supreme Court, it clearly emerges that the conduct of the Assessee acquires importance, in relation to the proceedings of imposition of penalty or prosecution or conviction of the Assessee and when the Assessee satisfactorily demonstrate that he was having no intention of concealment of Income, either deliberately or in deliberately, the conviction could not be sustained. In the circumstances of the present case also, it is apparent from the perusal of the record that there was no Willful attempt to evade tax or concealment of income on the part of the Assessee Firm or false statement in verification and therefore, it would not be a case of Willful Concealment of Income or even a case of Furnishing of inaccurate particulars of Income and therefore no fault could be found in the impugned Judgment of the Appellate Court. ( 23. ) Consequently, this Appeal preferred on behalf of the Union of India against the acquittal of the Assessee Firm is hereby dismissed; however there shall be no Orders as to costs.