Crm-M/1893/2009 Of S.k. Bajaj v. Income Tax Officer

IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH ».K. BajajIncome Tax Officer-III (2)».K. BajajIncome Tax Officer-III (2)Yashpal Khannastate of Punjab and anotherAnil BhasinIncome Tax Officer-III (2)Income Tax Officer-III (2)Yash Pal Khanna and others CORAM: HON'BLE MR. JUSTICE FATEH DEEP SINGH 1.Whether reporters of local newspaper may be allowed to see9:8;5#)"< 2.To be referred to reporters or not?3.Whether the judgment should be reported in the digest? QD FATEH DEEP SINGH, J. The four petitions detailed above having been filedunder Section 482 Cr.P.C. and one criminal revision thoughpertain to different Criminal Complaints preferred by the IncomeTax Officer against different accused/respondents but havingregard to the common facts and that similar questions of law areinvolved and therefore are being disposed off together for theprevention of prolixity, Petitions bearing Nos.CRM-M-1893-2009, CRR-3419-2010, CRM-M-5013-2012, CRM-M-21521-2013 except CRM-M-13105-2012 are by the private individuals who happens to beaccused in criminal complaints preferred by the Income TaxOfficer under Sections 277 and 278 of the Income Tax Act, 1961and Sections 193, 196, 197, 199, 200, 4605, 4607 and 471 rewith Section 120-B of the IPC wherein vide summoning ordersdated 24.03.2006 passed by the Court of learned Chief JudicialMagistrate, Jalandhar these petitioners/accused have beensummoned to face trial under these provisions of law as well as oO challenge has been made to orders dated 23.12.2011 decliningstay on the application of the present petitioners the thenaccused. The allegations of the complainant are precisely thatthe petitioners/accused are carrying on business of sale andpurchase of cloth and had filed Income Tax Returns declaring thenet income and, thereaiter, the Assessing Officer proceededagainst them in terms of Section 143 (1) of the Income Tax Act,1961 and the case was selected for scrutiny and the assessmentwas framed in terms of Section 143 (3) of the Income Tax Act,1961 which was subsequently cancelled by the Commissioner ofIncome Tax vide his orders passed under Section 263 of theIncome Tax Act, 1961 with the direction for framing assessmentde novo. The Competent Authorityde novoassessed and framedthe income under Section 143 of the Income Tax Act, 1961 and,thus, a demand was raised. It is during the course of events, theaccused Yashpal Khanna claimed to have _ received giftageregating Rs.9,00,000/- from one Gurdev Singh and his sonNishan Singh by way of two demand draits each amounting toRs.4,90,000/- regarding which the assessee had filed affidavitdated 09.01.2001 and which assessment was set aside by theCommissioner of Income Tax by exercise of his powers undersection 263 of the Income Tax Act, 1961. | During the reassessment proceedings, on asking of the Authorities, the accused furnished fresh affidavit dated 18.02.2005 and a gift deed dated 19.02.2005 and after necessaryformalities, the alleged donor-Gurdev Singh denied having madeany such gift to the assessee or ever having signed the allegedaffidavits dated 09.01.2002, 18.02.2005 as well as the gift deed inquestion aS a witness and even denied the documents by way ofphotographs of marriage of the son of Gurdev Singh namelyNishan Singh and it is during the proceedings Gurdev Singh abovesaid made a statement before the Authority on 12.01.2006 whichbelied the stand of the assessee and therefore, the Authoritiesdiscovered that the affidavits and the gift deed so relied upon bythe assessee were forged and fabricated documents so as tomislead the Income Tax Authorities which led to the filing of thecomplaints in question. In the Criminal petitionCRMMT3105YDO1theIncome Tax Officer/complainant in the complaints has challengedthe observations dated 27.10.2010 passed by the learned ChiefJudicial Magistrate, Jalandhar during the cross-examination ofCWo- Abhimanyu Kumar (Annexure P6) whereby the opportunityof cross-examination of this witness by one of the accused wasdeferred after lunch. In the Criminal petitionCRMMT3105YDO1theIncome Tax Officer/complainant in the complaints has challengedthe observations dated 27.10.2010 passed by the learned ChiefJudicial Magistrate, Jalandhar during the cross-examination ofCWo- Abhimanyu Kumar (Annexure P6) whereby the opportunityof cross-examination of this witness by one of the accused wasdeferred after lunch. Heard Sh. Rohit Sood, Advocate for the petitioners, Mr.C.S. Brar, Deputy Advocate General, Punjab for the State and Mr.Rajesh Katoch, Advocate for the Income Tax Department andperused the records of the case. Admittedly,’ thepetitioners/assessee who were accused did not invoke _ th jurisdiction of the learned Magistrate for their discharge in termsof Section 245 Cr.P.C. Since they all have challenged thesummoning orders summoning them as accused and which wereamenable to revision and which arguments could not be displacedby the counsel for the petitioners and the respondents and whochoose not to file any revision and therefore, in view of the lawlaid down in “Mohit @ Sonu and another Vs. State of U.P. andothers, 2013 (3) RCR Crl.673“, when there is a_ statutoryprovision provided under the Statute, then it is undesirable tohave recourse to the proceedings under Section 482 Cr.P.C. forthe exercise of inherent powers of this Court. Moreso, it has beenwell laid down in the case of “State of Haryana and others Vs. Ch. Bhajan Lal and others, 1992 AIR (SC) 604“, that provisionsof Section 482 Cr.P.C. is something of a rarity to be exercised verysparingly in the rarest of the rare cases where the ends of justiceso demand and none of these eventualities could be satisfactorilyspelled out by the counsel representing the accused/ petitionersthus, the question of maintainability of petitions bearingNos.CRM-M-1893-2009, CRR-3419-2010, CRM-M-5013-2012,CRM-M-21521-2013 is not there. The moot point that has further crystallized out of theargeuments addressed by the two sides is over the very legality ocontinuation of the prosecution proceedings in view olf?Commissioner of Income Tax Vs. Bhupen Champaklal Dalal &Anr. (2001) 167 CTR (SC) 283”, to hammer home the point that 6 the very ultimate result of the proceedings before the AppellateAuthorities have definite bearing on the cases so opened by theIncome Tax Authorities alleged to be against the accused and thatit would not be in the interest of justice to prosecute them till thisvery factum of assessment has attained finality. It has been rightlycontended on behalf of the respondent/complainant that the factsin the cited ratios are at much disparity from the case before thisCourt as the said complaints in the cited ratios are purely arisingunder the Income Tax Act, 1961 which is not so in the presentcase where there are definite allegations made by the complainantof fraud and deception by forging and fabricating documents andfiling them before the authorities to take undue pecuniaryadvantage by the accused. Even in “Commissioner ot [ncomeTax, Mumbai Vs. Bhupen Champak Lal Dalal 2001 AIR (SC)1096”,their Lordships of Hon'ble Apex Court were of the viewthat the prosecution in a criminal law and proceedings arisingunder the Act are undoubtedly independent proceedings andtherefore there is no impediment in law tor the criminalproceedings to proceed even during the pendency of theproceedings under the Act. In the present case and even in?Bhupen Champaklal Dalal vs. Sandeep Kapoor and another'(2001) 167 CTR (Bom) 281”, it was held by their Lordships of theHigh Court of Bombay that where an assessee is being prosecutedin terms of Section 276 (C), 277 and 278 (B) of the Income TaxAct, 1961 even if the appeals are dismissed the criminal T T prosecutions are to proceed. Certainly, the accused in this caseare under the expectancy of a ftavourable finding of theassessment/reassessment proceedings pending before theAppellate Authority. However, the present prosecution by thecomplainant is not only under the Income Tax Act, 1961 but alsounder the relevant provisions of the Indian Penal Code, a quitedistinct offence which has not much relevance with the findings ofthe Appellate Authority under the Income Tax Act, 1961. TheHon'ble Apex court had considered at length such a position in “P.Jayappan Vs. S.K. Perumal, First Income-tax Officer,Tuticorin, 1984 AIR (SC) 1693”, where their Lordships were ofthe view that pendency of reassessment proceedings cannot act asa bar to the institution of criminal prosecution even for offencespunishable under the Income Tax Act, 1961 and in the casesbefore this Court, it is the institution of criminal proceedings evenunder the IPC, which are under consideration and have upheldearlier judgment of this Court in *Telu Ram Raungi Ram vs.Income-tax Officer, 'A' Ward, Hoshiarpur, (1984) 145 ITR 111@'where it was addressed by their Lordships that a criminal Courthas to adjudge the case independently on evidence placed betoreit, else there is a danger of contention to thwart such proceedings.In the|prima facieallegations in the case before this Court, thereare serious allegations of not only of making of false assessmentstatement to this effect but also trying to mislead the Income TaxAuthorities by filing false, forged and fabricated documents and 8S which criminal act by the assessee is quite independent of what issought to be prosecuted under the Income Tax Act, 1961 by theIncome Tax Appellate Authority. Thus, it would be highlypreposterous to withhold the proceedings which have already beeninitiated before the trial Court. Thus, in the totality of what has been detailed anddiscussed above, there is no merit in the petition Nos,CRM-M-1893-2009, CRR-3419-2010, CRM-M-5013-2012, CRM-M-21521-2013 which as such are hereby dismissed. Mr.RajeshKatoch,counselforthecomplainant/petitioner in CRM-M-13105-2012 has § fairconceded that the very order under challenge has been passed bythe learned trial Court purely with a view to afford an opportunityof cross-examination by the accused side and has only deferredpart of the cross-examination for a particular accused to cross-examine CWo post lunch and which orders (Annexure P6) to themind of this Court is purely an interim order neither causing anyprejudice to the extent of the petitioner much less the rights of theparties in any manner. Even the learned counsel for the petitionercould not convince this Court how it would in any manner affectthe evidence which is there before the Court and is already on thefile or which is to come subsequent thereto after the examinationof this witness. To the mind of this Court, it is purely a misuse ofthe process of the Court by the complainant and does not meritsany indulgence by this Court. Finding this petition bearing CRM- CRM-M-1893-2009 & other connected cases M No.13105-2012 be wholly without merit, the same standsdeclined and dismissed. Keeping in view the inordinate delay that has alreadybeen occasioned, necessary directions are issued to the learnedtrial Court to speedily dispose off these matters by affording shortadjournments not more than 10 days at one stretch. January 29, 2016 Dpr (FATEH DEEP SINGH)JUDGE