Indian Plywood Manufacturing Co. Ltd. And Ors v. Along With

IN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTIONCRIMINAL APPLICATION NO. 43 OF 2000 Indian Plywood ManufacturingCo. Ltd. and Ors.V/sMr. P.S. Dave and anr.----Shri N.K. Thakore with Shri Prakash Naik for theapplicants.Shri H.V. Mehta for respondent No.1.Shri R.Y. Mirza for the State. ....Applicants. ....Respondents. ALONG WITH CRIMINAL APPLICATION NO. 44 OF 2000 Indian Plywood ManufacturingCo. Ltd. & Ors.....Applicants.V/sMr. P.S. Dave & anr.....Respondents.----Shri N.K. Thakore with Shri Prakash Naik for theapplicants.Shri H.V. Mehta for respondent No.1.Shri R.Y. Mirza, APP for the State CORAM: V.M. KANADE, J.DATE: 14th March 2006 ORALJUDGMENT: 1. Both these Criminal Applications can be disposed of by a common judgment since the issue involved in both these matters are identical. including an amount of Rs 27,17,994/- which was theamount of refund of excise duty received in the year1981. The addition made by the Inspecting AssistantCommissioner was upheld in the appeal. Theapplication made by the applicants for change in the accounting period was allowed. 3. It was alleged that the excise duty was notcredited to its profit and loss account and this wasdone to avoid income-tax. Accordingly, penaltyproceedings were initiated under section 271(1)(c) ofthe Income-tax Act and on 27/3/1987, the order waspassed imposing penalty to the tune of Rs 89,08,882.Finally, the Commissioner of Income-tax by order dated28th March, 1990 set aside the penalty which wasimposed.4. Simultaneously, after the penalty proceedings wereinitiated, a complaint was filed in the Court of theAdditional Metropolitan Magistrate, 19th Court,Esplanade, Mumbai vide Criminal Case No.4/S/87 for theoffence punishable under sections 276-C and 227 of theIncome-tax Act read with section 273B of the said Act.The process was issued on the said complaint. Though,the Commissioner of Income-tax (Appeals) Bombay hadallowed the appeal filed by the applicants, the :3: for quashing the said criminal proceedings. 276-C is automatic. Sections 279(1) and 279(1A) read as under:- EXPLANATION : For the purpose of this Section "appropriate authority" shall have the samemeaning as in Clause (c) of section 269UA". The ratio of the said judgment, therefore, is squarely applicable to the facts of the present case. In the result, Criminal Application No.43 of 2000 is made absolute in terms of prayer clause (b). Rule is made absolute in the above terms. Builders and another (supra) is also squarely applicable to the facts of the present case. 9. In the result Criminal Application No.44 of 2000 is also allowed in terms of prayer clause (b). Rule is made absolute in the above terms. 10. Both the above criminal applications are accordingly disposed of. V.M. KANADE, J.