N.K. Mohnot vs Commissioner of Income Tax

Srinivasan, J.—The appellant filed the writ petition for the issue of a mandamus forbearing the respondent from proceeding with the charge

sheet issued against the appellant in Letter No. Conf. 506. A(2) /91/dated March 24, 1993. The appellant is an Income Tax practitioner. A first

information report was filed against him in the court of the X Metropolitan Magistrate, Egmore, u/s 120B, read with sections 420, 468 and 471 of

the Indian Penal Code. The appellant is shown as the third accused in the said first information report and the concern of which he is the proprietor

is the first accused. It refers to a complaint by the Deputy Commissioner of Income Tax, Headquarters (Administration), II, Madras. According to

the complaint, it was found in a search of his office premises that he had forged the Income Tax challans purported to have been issued by Indian

Bank, Sowcarpet Branch, with regard to four of his clients and on a suspicion of the challans, the matter was cross-checked by the Assistant

Commissioner. On that basis, the first information report was filed stating that the appellant had forged to the extent of Rs. 3,25,857. The details of

the assessees are also set out in the first information report.

The Commissioner of Income Tax issued a charge-sheet to the appellant u/s 288 of the Income Tax Act read with rule 60 of the Income Tax

Rules, 1962, and called upon him to submit a written defence within ten days from the receipt thereof. There are three charges framed against him,

which read as follows:

Article I. - That the said Sri Narendra Kumar Mohnot having his office in the name and style of ''Mohnot and Co.'' at No. 38, College Road,

Nungambakkam, Madras-6 has deliberately and with mala fide intention to defraud Revenue filed bogus and forged challans for the payment of

taxes, before the Income Tax authorities and falsely claimed credit for such payments.

Thus, Sri Narendra Kumar Mohnot committed grave misconduct in connection with Income Tax proceedings for which he is liable to be

disqualified u/s 288(5)(b) of the Income Tax Act, 1961, to represent an assessee u/s 288(1) of the Income Tax Act.

Article II. - That the said Sri Narendra Kumar Mohnot having his office in the name and style of ''Mohnot and Co.'' at No. 38, College Road,

Nungambakkam, Madras-6, has issued a forged audit certificate u/s 44AE, by using the name of one Sri. P. Ramanujam, Chartered Accountant at

No. 162, Thambu Chetty Street, Madras-1. Thus, Sri Narendra Kumar Mohnot has committed grave misconduct for which he is liable to be

disqualified u/s 288(5)(b) of the Income Tax Act, 1961, to represent an assessee u/s 288(1) of the Income Tax Act.

Article III. - That the said Sri Narendra Kumar Mohnot having his office in the name and style of ''Mohnot and Co.'' at No. 38, College Road,

Nungambakkam, Madras-6, has fraudulently obtained/tried to obtain Income Tax refunds in the name of non-existent business concerns by

producing bogus tax deduction certificates.

Thus, Sri Narendra Kumar Mohnot has committed grave misconduct for which he is liable to be disqualified u/s 288(5)(b) of the Income Tax Act,

1961, to represent an assessee u/s 288(1) of the Income Tax Act.

In the statement of imputation of misconduct sent along with the articles of charge shown in annexure-II, the relevant facts are set out. As

regards articles II and III, it is seen that, on a search of the appellant''s premises, it was found that there were two seals in the name of one P.

Ramanujam, Chartered Accountant with registration No. 20373 and on being summoned u/s 131 of the Income Tax Act, the said Ramanujam has

given a statement that the seals did not belong to him. Similarly, under article III, it was found that the appellant had filed certain bogus tax

deduction certificates in the names of certain concerns, details of which are given in the annexure and which are purported to have been signed by

Ramanujam but denied by the said Ramanujam. It is also found that some of the tax deduction certificates related to some non-existent companies.

The appellant filed the writ petition with the prayer as stated earlier. In the writ petition, he questioned the jurisdiction of the Commissioner to

proceed with the disciplinary action. He has also raised certain other contentions in the writ petition challenging the validity of the proceedings

themselves. The respondent entered appearance and filed a counter-affidavit.

The learned single judge passed an order on January 24, 1994 (see N.K. Mehaet Vs. Commissioner of Income Tax, ), rejecting the contentions

of the appellant and dismissing the writ petition. It is seen from the judgment that several contentions were urged with regard to the validity of the

proceedings themselves and the learned judge dealt with them at great length. There was no contention before the learned judge that because of

the initiation of the criminal proceedings, the disciplinary action should be stopped till the disposal of the criminal proceedings.

In this appeal, the only contention urged by learned counsel for the appellant is that the disciplinary action should be stopped till the criminal

proceedings initiated against the appellant are concluded. Learned counsel places reliance in this connection on the judgment of the Supreme Court

in Kusheshwar Dubey Vs. Bharat Coking Coal Ltd. and Others, ; and P. J. Sunderarajan v. Unit Trust of India [1993] 1 LLJ 168. In the former

case, the court found that the criminal action and the disciplinary proceedings were grounded upon the same set of facts and the court expressed

the opinion that the disciplinary proceedings should have been stayed and the High Court was not right in reversing the order of injunction granted

by the trial court. But, the court held that it was not an abstract proposition which could be applied to all circumstances, irrespective of the facts of

the case. The court, referred to its earlier decisions and said (at page 89 of 74 FJR) :

The view expressed in the three cases of this court seem to support the position that while there could be no legal bar for simultaneous

proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal

case. In the latter class of cases it would be open to the delinquent-employee to seek such an order of stay or injunction from the court. Whether,

in the facts and circumstances of a particular case, there should or should not be such simultaneity of the proceedings would then receive judicial

consideration and the court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be

interdicted, pending criminal trial. As we have already stated it is neither possible nor advisable to evolve a hard and fast, straight-jacket formula

valid for all cases and of general application without regard to the particularities of the individual situation. For the disposal of the present case, we

do not think it necessary to say anything more, particularly when we do not intend to lay down any general guideline.

In the latter case, the court found that in the enquiry before the criminal court many witnesses had already been examined and it expected the

trial to be completed within three months. In those circumstances, the court granted stay of all further proceedings in the disciplinary enquiry.

Learned counsel invites our attention to the judgment of a learned single judge of this court in In Re: K. Saroja, . That judgment was reversed by

a Division Bench of this court and the judgment of the Division Bench was challenged in P. J. Sundararajan v. Unit Trust of India [1993] 1 LLJ

168 referred to earlier, before the Supreme Court. We have already pointed out the circumstances under which the Supreme Court set aside the

order of the Division Bench and restored the order of the learned single judge.

A similar view has been expressed by one of us (AR. Lakshmanan J.) in R. P. Ramajayam v. Tamil Nadu Cements Corporation Ltd. [1993] 2

LW 39. The learned judge found on the facts that both the criminal case and the disciplinary proceedings in that case were grounded upon the

same set of facts and hence the disciplinary proceedings should be stayed till the criminal case was disposed of by the criminal court. The learned

judge has referred to the rulings of the Supreme Court and also the decisions of the other High Courts.

In this case, we find that only one charge, if at all, could be said to be common in both the proceedings. The first information report shows that

the subject matter of the charge is only the forgery of challans submitted along with Income Tax returns on behalf of certain clients of the appellant.

But, on the other hand, in the disciplinary proceedings, there are as many as three charges and the first of them relates to forged challans. The other

two charges have nothing to do whatever with the forgery of challans. It is seen that the first information report was filed on August 4, 1992, and

we are informed by learned counsel for the appellant that the matter comes up before the court on September 20, 1995, for the first time. So far

no witness has been examined in the criminal proceedings and it is not known how long the criminal proceedings would take. Further, the appellant

is not the only accused in the criminal court. There are as many as nine accused in the said proceedings. In the facts and circumstances of the case,

we do not find any justification for accepting the prayer of the appellant and stopping the disciplinary proceedings till the disposal of the

proceedings in the criminal court. It goes without saying that in the disciplinary proceedings, evidence has to be adduced and the enquiry officer has

to be satisfied that the charges are made out. If the enquiry officer finds sufficient evidence to prove the charges, then the further proceedings shall

follow. Taking into consideration the fact that the appellant is an Income Tax practitioner and that several clients of his will be depending upon him,

the interests of justice require that the disciplinary proceedings are conducted as expeditiously as possible and finished at an earlier date.

In the circumstances, the writ appeal is dismissed.