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2016 DIGILAW 234 (JHR)

Anil Kumar Jha v. State of Jharkhand

2016-02-01

PRASHANT KUMAR

body2016
ORDER : This writ application is directed against the order dated 07.01.2010 passed by Additional Sessions Judge, F.T.C-I, Dhanbad in Criminal Revision No. 120/07, whereby and where under, the revision application filed by the Assessing Officer/Complainant has been allowed and the order dated 10.09.1997 passed by Special Judge, Economic Offence, Dhanbad in C.O. Case No. 301/1992 has been set aside. 2. It is alleged that in course of assessment proceeding, the Assessing Officer noted that the petitioner purchased land and constructed a house on the said land by investing Rs. 1,39,000/-. The Assessing Officer further found that the petitioner disclosed his source of investment in the following manner : (i) Cash gift -Rs. 20,000/- (ii) I.T. refund -Rs. 31,085/- (iii) Out of books -Rs. 73,506/- (iv) Out of past savings- Rs. 14,408/- Total -Rs.1,38,999/- 3. The Assessing Officer further found that the Income Tax Refund Amount of Rs. 31,085/-was deposited in the saving account of the petitioner on 20.02.1990 and the said amount could not be withdrawn till 31.03.1990. Therefore, the Assessing Officer came to the conclusion that the petitioner had not spent aforesaid income tax refund amount of Rs. 31,085/-towards construction of house. In fact, petitioner spent aforesaid amount from undisclosed source of income and filed income tax return concealing his income. Accordingly, the Assessing Officer initiated penalty proceeding under section 271 (c) of the Income Tax Act and ultimately levied penalty of Rs.15,000/-upon the petitioner. 4. It appears that against the aforesaid order of the Assessing Officer, petitioner filed an appeal before the Commissioner of Income Tax (Appeals), Jamshedpur. It further appears that the Commissioner of Income Tax (Appeals) allowed the appeal of the petitioner and set aside the penalty imposed by the Assessing Officer. Against the order of Commissioner of Income Tax (Appeals), the complainant-cum-Assessing Officer filed an appeal before the Income Tax Appellate Tribunal , which was ultimately dismissed by order dated 10.01.1997. 5. It appears that thereafter, petitioner filed application before the learned Special Judge, Economic Offence, Dhanbad for discharge. Learned Special Judge, after considering the judgment of the Hon'ble Supreme Court discharged the petitioner in C. O. Case no. 301/92. Against that the Assessing Officer -cum-Complainant filed revision vide Cr. Revision No. 120/97, which was allowed by the impugned order. 6. 5. It appears that thereafter, petitioner filed application before the learned Special Judge, Economic Offence, Dhanbad for discharge. Learned Special Judge, after considering the judgment of the Hon'ble Supreme Court discharged the petitioner in C. O. Case no. 301/92. Against that the Assessing Officer -cum-Complainant filed revision vide Cr. Revision No. 120/97, which was allowed by the impugned order. 6. It is submitted by Sri P.P.N.Roy, learned senior counsel appearing for the petitioner that it has been held by the Hon'ble Supreme Court in G.L. Didwania and another. Vs. Income Tax Officer and another, reported in 1995 Supp.(2) SCC-724 that if the Tribunal has set aside the finding of the Assessing Officer then on the basis of finding of the Assessing Officer, no prosecution can be sustained. It is submitted that in the instant case, the Assessing Officer came to the conclusion that the petitioner concealed his income in its income tax return, therefore, liable to pay penalty under section 271(c) of the Income Tax Act. The said order was challenged in appeal before the Commissioner of Income Tax (Appeals). The Appellate Authority set aside the penalty imposed upon the petitioner. The said order of the Commissioner of Income Tax (Appeals) confirmed by the Income Tax Appellate Tribunal. Accordingly, it is submitted that on the basis of finding of Assessing Officer, petitioner is not liable to be prosecuted. Thus, the order of revisional authority is wrong and illegal. 7. Sri Deepak Roshan, learned counsel appearing for the Income Tax has not disputed the aforesaid proposition of law. 8. Having heard the submissions, I have gone through the records of the case. 9. As noticed above, in the instant case, the Assessing Officer filed a complaint to prosecute the petitioner under sections 276(C) and 277 of the Income Tax Act for concealing his income for the assessment year 1990-91. It further appears that the Assessing Officer also imposed penalty of Rs. 15,000/-upon the petitioner under section 271(c) of the Income Tax Act for aforesaid concealment. Against the imposition of aforesaid penalty, petitioner filed an appeal before the Commissioner of Income Tax (Appeals), Jamshedpur. The Appellate Authority set aside the penalty imposed by the Assessing Officer. Against the order of Commissioner of Income Tax (Appeals), Jamshedpur, the Assessing Officer-cum-complainant filed an appeal before the Income Tax Appellate Tribunal. Against the imposition of aforesaid penalty, petitioner filed an appeal before the Commissioner of Income Tax (Appeals), Jamshedpur. The Appellate Authority set aside the penalty imposed by the Assessing Officer. Against the order of Commissioner of Income Tax (Appeals), Jamshedpur, the Assessing Officer-cum-complainant filed an appeal before the Income Tax Appellate Tribunal. But the Tribunal also rejected the appeal of the Assessing Officer and confirmed the order of Commissioner of Income Tax (Appeals), Jamshedpur. 10. In that view of the matter, I find that the conclusion of the Assessing Officer that petitioner had concealed his income for the assessment year 1990-91 has not been accepted by the appellate authorities. Thus, for the same, petitioner can not be prosecuted under sections 276(C) and 277 of the Income Tax Act. 11. It has been held by the Hon'ble Supreme Court in G.L. Didwania and another. Vs. Income Tax Officer and another (Supra) that if the finding of the Assessing Officer is set aside by the Tribunal, then in that case, on the basis of finding of the Assessing Officer, no prosecution can be sustained. 12. In view of the aforesaid judgment of the Hon'ble Supreme Court, I find that the finding of the learned Additional Sessions Judge, F.T.C-I, Dhanbad in Cr. Revision No. 120/97 can not be sustained. 13. Accordingly, this application is allowed and the impugned order dated 07.01.2010 is hereby quashed. The order dated 10.09.1997 passed by the Special Judge, Economic Offence, Dhanbad in C.O. Case no. 301/92 is hereby confirmed. Accordingly, the prosecution launched against the petitioner is also quashed.