Saroj Devi Agarwal v. Crlmp-5042/2021

HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPUR S.B. Criminal Misc(Pet.) No. 5042/2021 Saroj Devi Agarwal W/o Shri Hariram Agarwal, Aged About 57Years, R/o Bachhawaton Ka Mohalla, Bikaner (Raj.) ----Petitioner Versus Income Tax Department, Through Assistant Income TaxCommissioner, Central Circle, Income Tax Department, Bikaner.----Respondent For Petitioner(s) : Mr. Mahaveer Bishnoi.For Respondent(s): Mr. K.K. Bissa. HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATIOrder 25/08/2022 Learned counsel for both the parties jointly submit that thepresent petition is a part of the controversy, which has alreadybeen decided by this Hon’ble Court in Ashish Agarwal Vs. IncomeTax Department; (S.B. Criminal Misc. Petition No.3106/2022) videorder dated 04.08.2022. The relevant portion of the order readsas follows: “22.Asimplelookatthecomplaintfiledbytherespondent-Income-tax Department (Annex.2) leaves no room for ambiguity thattheDepartmentwantedpetitioner’sprosecutionunder Section276-CC(ii)oftheActof1961,asisevidentfrom the caption of theapplication. If the application is read, it is apparent thattheIncome-taxDepartmenthaddesired petitioner’s prosecution for 72 days’delay in filing the return. There is not even a whisper of evasion ofincome-tax, whereas the learned trial Court, claiming to haveperused the record, has observed that the accused (petitionerherein) has not filed his return of income for 2013-14 and hasevaded the income-tax. 23.IntheopinionofthisCourt,theorderofthecognizanceshowsclearmisreadingofthecomplaintandthesamesuffers frommanifest error of law, for which it is liable to be quashed and setaside. 24.Mr. Bissa may be correct in saying that the petitioner ought tohavepreferredarevisionpetitionunderSection397ofthe Code butthen, considering that the petitioner and his group has filedabout80petitionsofidenticalnature,relegatingthe petitionerstofilerevisionpetition(s),thattoowhentheorder impugned suffers from palpableerror of law and facts, would lead to multiplicity of litigation andpassing of dockets from this Court to the Revisional Court. 25. The preliminary objection raised by the Income-Tax Departmentis thus, over-ruled. 26. In view of the aforesaid discrepancy and considering that notonly the notice issued to the petitioner before granting prosecutionsanction, even the complaint filed by the Department alleges delayin filing return, while eliciting prosecution under Section 276-CC (ii)of the Act of 1961, this Court is of the view that the cognizance,which has been taken for evasion of tax is ex-facie erroneous and deserves to be quashed and set aside. 27. The order granting prosecution sanction has neither beenchallenged in the present petition nor can the same be permitted tobe questioned before this Court in its jurisdiction under Section 482of the Code. Because, the act of granting prosecution sanction is anadministrative or statutory exercise of powers. 28. In view of the discussion foregoing, instant petition so also thoseenumerated in the appended scheduled are allowed. Thecognizance order in each of the case is hereby quashed and setaside. 29. The petitioners shall appear before the trial Court on 03.09.2022either personally or through counsel. 30. The trial Court shall consider the submissions of the Income-tax Department/complainant so also present petitioners (accused)and then, take into account and then pass a speaking order, againstwhich remedies of both the parties shall stand reserved. 31. The petitioners shall be free to challenge order grantingprosecution sanction in accordance with law, if so advised. 32. The stay applications also stand disposed of accordingly.” In light of the aforesaid order, the present petition standsdisposed of in the same terms. All pending applications also standdisposed of. -97Zeeshan (DR.PUSHPENDRA SINGH BHATI), J.