1999PTD 1917 (PLP)

NARESH KUMAR SINHA, J.

The petitioner, who is an income tax assessee, has invoked the writ jurisdiction of this Court to quash his prosecution under sections 276-C and 277 of the Income Tax Act, 1961, (hereinafter the "Act"), vide Complaint Case No.423 of 1991 pending before the Special Court of Economic Offences, Bihar, Muzaffarpur. The facts of the case lie within a short compass. The petitioner submitted a return showing a total income of Rs.14,770, for the assessment year 1979-80. The assessment was completed on a total income of Rs.1,28,390 after including the income of Rs.1,25,010 derived from the Hai Clinic. On appeal, the Commissioner of Income-tax (Appeals) reduced the quantum of income from the Hai clinic to Rs.55,000 which order was subsequently confirmed by the Tribunal and a challenge before the Hon'ble High Court also filed. The petitioner was, therefore, prosecuted for an offence punishable under sections 276-C and 277. of the Act for evading tax chargeable by concealing the true particulars of his income. The certified copies of the complaint petition filed for the prosecution of the petitioner for the aforesaid offences including the sanction order of the competent Authority and the order passed by the Court taking cognizance are Annexures 1, 2 and 3, respectively. Learned counsel for the petitioner pressed the writ application mainly on the ground that a similar assessment of the income of the petitioner made by the authorities for the assessment year 1980-81 and in connection with which the petitioner had been criminally prosecuted for offences under sections 276-C and 277 of the Act had been challenged by filing Cr. W. J. C. No. 289 of 1992 and a Bench of this Court vide its order, dated March 29, 1996 copy of which is Annexure 6 to the supplementary affidavit filed on behalf of the petitioner had been pleased to quash the prosecution. Learned counsel submitted with reference to the order (Annexure "6") of this Court that at a subsequent stage even the Income-tax Authorities accepted the stand of the petitioner that the income derived from the Hai Clinic could not be clubbed with his own income as the clinic belonged to his wife. It was, therefore, argued that when on that basis a Bench of this Court had been pleased to quash the criminal prosecution of the petitioned with regard to alleged violation punishable under sections 276-C and 277 of the Act for the assessment year 1980-81, the criminal prosecution of the petitioner for committing similar offences in respect of the assessment year 1979-80 could not be allowed to stand. Mr. S. K. Sharan, learned counsel appearing for the Revenue, was very fair in stating that in the light of the judgment (Annexure "6") of this Court quashing the criminal prosecution of the petitioner as also the order taking cognizance, the present criminal prosecution including the order of taking cognizance in the complaint case in question cannot stand. In view of what has been stated above it is obvious that the income from the Hai Clinic could not be included as income derived by the petitioner and hence to make him liable, for prosecution for offences punishable under the relevant provisions of the Act for concealing his income is an abuse of process of the Court and cannot be allowed to stand. More so when under similar circumstances Bench of this Court had been pleased to quash such prosecution for a subsequent year and more so when the sanction order for prosecution of the petitioner in respect of both the assessment years 1979-80 and 1980-81 was a composite one. In the result, the writ application is allowed and the prosecution of the petitioner as also the order taking cognizance are held to be an abuse of the process of the Court and are quashed to secure the ends of justice. M.B.A./2003/FC Application allowed.