Vinod Kumar and Another vs Income Tax Officer and Another

V.K. Bali, J.—This order shall dispose of Criminal Miscellaneous No. 5472-M of 1991 and Criminal Miscellaneous No. 4830-M of 1991 as common questions of fact and law are involved in both the cases. The facts have, however, been extracted from Criminal Miscellaneous No. 5472-M of 1991.

Vinod Kumar, partner of Messrs. Ghai Steel Industries, Khanna and Smt. Sarla Devi, another partner of the same concern, through the present petition filed by them u/s 482 of the Code of Criminal Procedure seek quashing of the order dated March 4, 1991, passed by the learned Additional Sessions Judge as also the complaint under Sections 276C and 277 of the Income Tax Act.

The brief facts of the case are that the Income Tax Officer, respondent No. 1, filed a complaint under Sections 276C and 277 of the Income Tax Act against the firm, Ghai Steel Industries, and against its partners including respondent No. 2, another partner of the firm. It is alleged in the complaint that the petitioners along with respondent No. 2 and the firm have concealed a huge amount of income of the firm and they have concealed the true facts and at the same time verified the Income Tax return filed by them falsely. The petitioners and respondent No. 2 were summoned to face trial by the Chief Judicial Magistrate, Ludhiana, After putting in an appearance before the Judicial Magistrate, the petitioners made an application u/s 245(2) of the Criminal Procedure Code for discharging them on the ground that the very order of the Income Tax Officer on the basis of which the complaint had been filed has since been set aside by the Commissioner (Appeals), Ludhiana. The Judicial Magistrate, on the plea aforesaid, discharged the petitioners and respondent No. 2. The Income Tax Department, however, carried a revision against the said order and the revisional authority allowed the revision setting aside the order passed by the Magistrate. It is against this order of the Additional Sessions Judge that the present petition has been filed.

The basic contention of Mr. Jasbir Singh, learned counsel appearing for the petitioners, is that the order on the basis of which the complaint has been filed was set aside. It is admitted between the parties that a new return was filed under the amnesty scheme. It is thus contended that once the Department had introduced a scheme in which an indication was given that in case anybody voluntarily discloses his true income, he would not be proceeded against, the Department afterwards could not turn around to say that the disclosure constituted an offence under the provisions of the Income Tax Act.

This is a 1991 matter and a number of adjournments were given to counsel representing the respondent-Department to place on record the amnesty scheme. It is the positive case of the petitioner so pleaded in the petition that the amnesty scheme absolved the defaulter not of penalty but also of prosecution.

The learned Additional Sessions Judge also discussed the matter and also noted the point with regard to the Amnesty Scheme. He likewise '' observed that the text of the scheme has not been produced before him for his perusal. That being the position, the crucial point raised before this court cannot be determined. This matter, however, cannot be adjourned as referred to above, as the same is pending disposal in this court since the year 1991. In the totality of the facts and circumstances of this case, it is ordered that the revisional order passed by the learned Additional Sessions Judge be set aside and so be the order passed by the Chief Judicial Magistrate. The point noted above shall be determined by the Magistrate dealing with the matter only if the Income Tax department places on record the amnesty scheme and if after perusal of the same and hearing learned counsel for the petitioner, the learned Magistrate comes to the conclusion that the petitioners have committed an offence, it shall be open to him to proceed in the matter. The petitioners, if they so choose, may not appear before the trial Magistrate but in that case they will give an undertaking that the lawyer appearing on their behalf would put in appearance on all the dates of hearing and if they are called for some specific purpose, they would appear before the court and the criminal proceedings conducted in their absence but in the presence of their lawyer would be binding upon them.

The matter is disposed of accordingly. The parties through their counsel are directed to appear before the trial court on March 28, 1995.