Patna High Court
Sheo Shankar Sah vs Commissioner Of Income Tax on 23 February, 1998
Equivalent citations: [1999]106TAXMAN536(NULL)
ORDER
1. Heard the learned counsels for the parties. The petitioner is an income-tax assessee and is being prosecuted for offences punishable under sections 276C and 276CC of the Income-tax Act, 1961 (hereinafter referred to as 'the Act') vide complaint case No. 383 of 1992 pending before the Special Court of Economic Offences at Muzaff rpur. The petitioner seeks quashing of his criminal prosecution on the ground that it was wholly arbitrary and without application of mind and in violation of the principles of equity and natural justice.
2. It appears that the Assistant Commissioner (O.P. No. 3) filed a complaint petition (Annexure-1) alleging that for the assessment year 1988-89 assessment had been completed under section 144 of the Income-tax Act, 1961 (hereinafter referred to as 'the Act') on account of non-compliance of notices issued under sections 148 and 142(1), etc., and the Assessing Officer had estimated the total turnover of Rs. 50 lakhs and the net income thereon at Rs. 8 lakhs.
After including some income from some other sources, the total income was computed at Rs. 8,15,000. It was, therefore, alleged that the accusedpetitioner had committed an offence, as he had failed to file return of income in respect of notices served on him and for failure to take reasonable care to discharge the statutory obligation cast on him under section 139(1) of the Act. It is also alleged that the petitioner had consciously concealed the particulars of income in order to evade tax chargeable or imposable under the Act. The complaint was filed after obtaining sanction of the Commissioner (O.P. No. 1). The petitioner has also sought quashing of the order dated 30-4-1992 (Annexure-3) passed by the learned Presiding Officer taking cognizance of the offences.
3. The learned counsel for the petitioner argued that the assessment for the year 1988-89 which was the basis for the criminal prosecution of the petitioner has already been set aside by the Commissioner (Appeals). A copy of the order of the Commissioner allowing the appeal has been filed as Annexure-7. It appears from Annexure-7 that the learned Commissioner after referring to the relevant facts and also noticing the admitted fact that the assessment for the assessment years 1986-87 and 1987-88 had already been set aside by his learned predecessor, had set aside the assessment for the year 1988-89 also. The learned counsel for the petitioner relying on a decision of this Court in BholaNath Keshari v. State of Bihar (1997) 227 ITR 823 prayed that the criminal prosecution of the petitioner based on the assessment of a particular year, Le., 1988-89 was an abuse of the process of the court since the assessment for the year had been set aside in appeal by the learned Commissioner and the Commissioner had been pleased to remit back the matter of assessment to the Assessing Officer. It was also contended on behalf of the petitioner that although the Commissioner had been pleased to pass the order as far back as on 28-7-1992, no fresh assessment for the assessment year had yet been completed by the Assessing Officer.
4. In the result, this application is allowed and the criminal prosecution of the petitioner including the impugned order taking cognizance is set aside.