TaxTMI 
TaxTMI 
2007 (12) TMI 168
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.... criminal case No.13 of 1990 which is pending in the court of Chief Judicial Magistrate against the present petitioners under Secs. 276-C, 277 read with 278 B of the Income Tax Act 1961. ( Hereinafter referred to as the 'Act' ) 2. Short facts of the case are that a private complaint at the instance of Income Tax Officer Ratlam under S. 276-C, 277 read with 278 B of the Act has been filed which was registered and petitioners were summoned. The complaint was filed on the ground that during the accounting year and relevant for assessment year 1980-81, certain income was concealed by petitioners No. 2 & 3, who are the partners of petitioner No.1. Petitioner No.1 was engaged in the business of sale and purchase of Timber. The survey was condu....
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....as made on the basis of mere estimate wherefrom it can not be positively said that there was concealment of income. The stock could be known at the time of survey. The assessee furnished return of income when it was due. The assessee had come with certain explanation which could not be said lacking bona fide. No penalty is therefore leviable and has been deleted. 5. Learned counsel appears for petitioners has contended that since the penalty imposed by the department has already been set aside by ITAT and held that it was not a case of concealment of income, the very basis of prosecution goes away when ITAT has deleted the penalty. He has placed heavy reliance on the judgment reported in the matter of KC Builders and Anr. Vs. Assistant C....
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....twice in the form of petition under S. 482 of the Code which was withdrawn by petitioners with liberty to take action before appropriate forum. Thereafter petition under Article 226/227 of the Constitution of India was filed for quashment of the proceedings. The petition was heard and decided by learned Single Judge on 30.10.1998 and it was observed in para 8 that Trial Court is seized of the matter, has not refused to consider the petitioners' prayer in this regard which is manifest from the order of trial court dated 2.3.1994. Thereafter LPA No.484 of 1998 was filed against the aforesaid order passed in WP No.1382 of 98. While deciding the aforesaid LPA 484 of 98 on 25.1.1999 the Division Bench of this court has observed as under:- "We....
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.... against the petitioners and stage of S. 242 has already passed, therefore, the charge could not be quashed by the Trial Court and courts does not possess the inherent powers available under S.482 of the Code. But that hardly makes a difference if a wrong section of the Code was quoted in the application even; then, the Trial Court as well as the Revisional Court were not precluded from considering the effect of the judgment of ITAT for quashing the penalty and for holding that it is not a case of suppression of income. 11. It is also worth mentioning here that in the case of KC Builders ( supra) also the prosecution was under S. 276(c), 277 and 278(b) of the Act. The Apex Court has considered all these provisions and the word "deliberat....
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....and penalties, there is no concealment in the eyes of law and, therefore, the prosecution cannot be proceeded with by the complainant and further proceedings will be illegal and without jurisdiction. The Asstt. CIT cannot proceed with the prosecution even after the order of concealment has been set aside by the Tribunal. When the Tribunal has set aside the levy of penalty, the criminal proceedings against the appellants cannot survive for further consideration. In our view, the High Court has taken the view that the charges have been framed and the matter is in the stage of further cross examination and, therefore, the prosecution may proceed with the trial. In our opinion, the view taken by the learned Magistrate and the High Court is fall....