P.a. To Judge v. Income Taxofficer (2009(2) Klt 948), Directed The Court Below To

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN THURSDAY, THE 19TH DAY OF NOVEMBER 2015/28TH KARTHIKA, 1937 OP(Crl.).No. 117 of 2015 (Q) -----------------------------AGAINST THE ORDER/JUDGMENT IN CC 11/2008 of CHIEF JUDL.MAGISTRATE,ERNAKULAM. PETITIONER(S):-------------- K.S.NANDAKUMAR, AGED 49 YEARS, PROPRIETOR, VYSALI TEXTILES, MUKKADA, KOLLAM, PIN-691 501. BY ADV. SRI.DALE P.KURIEN RESPONDENT(S): -------------- 1. INCOME TAX OFFICER, WARD-2, BEHIND RAILWAY STATION, KOLLAM-691 001. 2. COMMISSIONER OF INCOME TAX (APPEALS), AAYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM-695 003. 3. COMMISSIONER OF INCOME TAX, AAYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM-695 003. R1-R3 BY ADVS.SRI.CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT SRI.K.M.V.PANDALAI, INCOME TAX DEPARTMENT PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 19-11-2015,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(Crl.).No. 117 of 2015 (Q) ----------------------------- APPENDIX PETITIONER(S)' EXHIBITS: ----------------------- P1 : COPY OF THE CIT (APPEALS) ORDER DTD.7.2.2007. P2 : COPY OF THE COMPLAINT PRESENTED U/S.190 OF THE CR.P.C BY THE ITO BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT (EO)ATERNAKULAM DTD.28.3.2008.BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT (EO)ATERNAKULAM DTD.28.3.2008. P3 : COPY OF THE JUDGMENT DTD.23.3.2009 REPORTED IN 2009(2)KLT 948. P4 : COPY OF THE ORDER OF THE TRIBUNAL IN ITA NO.947/COCH/2008 DTD.27.3.2009.DTD.27.3.2009. P5 : COPY OF THE ASSESSMENT ORDER DTD.29.12.2010. P6 : COPY OF THE MEMORANDUM APPEAL & GROUNDS BEFORE THE COMMISSIONER OF INCOME TAX (APPELLALS) DTD.29.01.2010.OF INCOME TAX (APPELLALS) DTD.29.01.2010. P7 : COPY OF THE DISCHARGE SUMMARY DTD 16.07.2008. RESPONDENT(S)' EXHIBITS:NIL------------------------ //True Copy// ss P.A. to Judge K. RAMAKRISHNAN, J.----------------------------------------------------------------O.P.(Crl.) No.117 of 2015-------------------------------------------------------------------- Dated this the 19[th] day of November, 2015 JUDGMENT This is a petition filed by the petitioner who is theaccused in C.C.No.11/2008 pending before the AdditionalChief Judicial Magistrate Court (Economic Offences),Ernakulam, which has been initiated on the basis of acomplaint filed by the Income Tax authorities under Section276(c) of the Income Tax Act for a direction to themagistrate under Article 227 of the Constitution of India. 2.It is alleged in the petition that the disputeregarding the assessment and the appeal was pendingbefore the appropriate authorities. Earlier when courtbelow had insisted for trial of the case, he moved this courtby filing W.P.(c) No.8819/2009 and this court by Ext.P3judgment reported in Nandakumar v. Income TaxOfficer (2009(2) KLT 948), directed the court below to O.P.(Crl.) No.117 of 2015 keep the prosecution in abeyance, till the disposal of the appeal pending before the statutory authority. After thedecision, the appeal was disposed of in favour of thepetitioner and it was remanded to the assessing authorityfor proper adjudication and after enquiry, the assessingauthority had reduced the amount of tax payable. This isbeing challenged by the petitioner by filing Ext.P6 appealbefore the appellate authority and that is pending. Now thecourt below is again insisting for trial of the case. Thedecision in the appeal will have impact on the criminalprosecution. So it is necessary that a direction will havebeen given to the court below for keeping the prosecutionin abeyance till the disposal of the statutory appeal pendingbefore the authorities. Hence the petition. 3.Heard the counsel for the petitioner Sri.DaleP.Kurian and Standing counsel for Income Tax,Sri.Christopher Abraham. O.P.(Crl.) No.117 of 2015 3.Heard the counsel for the petitioner Sri.DaleP.Kurian and Standing counsel for Income Tax,Sri.Christopher Abraham. O.P.(Crl.) No.117 of 2015 4.The counsel for the petitioner submitted thatsince the appeal is still pending before the appellateauthority, proceeding with the criminal prosecutionlaunched by the Income Tax department on the same issuewill cause prejudice to him. The Standing Counsel for therespondent admitted that the appeal is pending. 5.It is an admitted fact that there was somedispute arose regarding the submission of return and theparticulars mentioned in the return, which according to theIncome Tax Department was filed by suppressing their realIncome. They filed a complaint before the Additional ChiefJudicial Magistrate Court (Economic Offences), Ernakulamunder Section 276(c) of Income Tax Act and the learnedmagistrate has taken cognizance of the case asC.C.No.11/2008 and that was pending before that court. Itis also an admitted fact that earlier when the appeal filed bythe petitioner was pending before the Income Tax appellate O.P.(Crl.) No.117 of 2015 tribunal, he moved this court by filing W.P.(c)No.8819/2009,seeking similar relief and this court in the decision reportedin Nandakumar v. Income Tax Officer (2009(2) KLT948) evidenced by Ext.P3 allowed the petition and directedthe criminal prosecution to be kept in pending till finaldecision by the appellate authority in the matter. It is alsoadmitted by both sides that, that appeal was disposed of bythe appellate authority by remanding the matter to theassessing authority as per Ext.P4 order. The assessingauthority, after remand, passed Ext.P5 order, reducing theamount, which is being challenged by the petitioner byfiling the appeal before the Commissioner Income TaxAppeal, Thiruvananthapuram, evidenced by Ext.P6 appealmemorandum. The fact that the appeal is pending isadmitted by the counsel for the respondent as well. Sounder the circumstances, the dictum laid down in thedecision reported in Nandakumar's case (supra) will be O.P.(Crl.) No.117 of 2015 applicable even now as the decision of the appellateauthority in the matter will have some impact on thecriminal prosecution pending in respect of the same subjectmatter before the Additional Chief Judicial Magistrate Court(Economic Offences), Ernakulam and it is necessary thatthe prosecution has to be kept in abeyance until finaldecision is taken in the matter by the appellate authority.So under the circumstances, this court feels that it isnecessary in the interest of justice to give a direction to theAdditional Chief Judicial Magistrate to keep the prosecutionproceedings in C.C.No.11/2008 pending before that court inabeyance, till final orders are passed by the appellate courtin Ext.P6 proceedings pending before the Commissionerof Income Tax Appeals, Thiruvananthapuram. So the petition is allowed and the Additional ChiefJudicial Magistrate (Economic Offenes), Ernakulam, isdirected to be keep the criminal prosecution in O.P.(Crl.) No.117 of 2015 C.C.No.11/2008 pending before that court against thepetitioner filed by the Income Tax Department, in abeyancepending disposal of Ext.P6 appeal pending before theIncomeTaxCommissionerforAppeals,Thiruvananthapurm. With the above direction and observation thepetition is disposed of. Office is directed to communicate this judgment to theconcerned court, immediately. Sd/-K. Ramakrishnan, Judge //True Copy// P.A. to Judge ss