S.b. Criminal Misc. Petition v. Dy. Director Of Income Tax, Jaipur

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJAIPUR BENCH, JAIPUR S.B. CRIMINAL MISC. PETITION NO.793/2011 (Dr. Gunjan Jain & Anr. Vs. Dy. Director of Income Tax, Jaipur) Date of Order : 20[th] January, 2015 HON'BLE MR. JUSTICE M.N.BHANDARI Mr.Sanjay Jhanwar, for the petitioner/s.Mr.R.R.Baisla, Public Prosecutor for the State.Mr.R.B.Mathur, for the complainant/s. By the Court: By this criminal misc. petition, a challenge is made tothe complaint so as the order of cognizance. Learned counsel for the petitioners submits thatafter search and seizure, complaint was lodged against thepetitioners for an offence under Section 277 of Income Tax Act(for short “the Act”). During the pendency of complaint and afterpassing the order of cognizance, the matter has been decided bythe Settlement Commission. Therein, other than imposing tax alongwith interest, no penalty was imposed. The petitioners were givenimmunity from the prosecution. In the light of the subsequentdevelopment, the complaint so as the order of cognizance deserveto be quashed. Per contra, learned counsel for the complainant/ssubmits that after the order of cognizance, the Settlement S.B. CRIMINAL MISC. PETITION NO.793/2011(Dr. Gunjan Jain & Anr. Vs. Dy. Director of Income Tax, Jaipur) Commission had passed the order. It is, however, in regard tosearch and seizure conducted by the Department. The issue stillremains in regard to the statements made by Shri Sanjay Jainduring the course of search and seizure. The statement aforesaidwas false, thus he is liable to be prosecuted, hence, interference inthe complaint as well as in the order of cognizance may not bemade.I have considered the submissions made by learnedcounsel and perused the record. The perusal of the complaint makes a reference ofsearch and seizure. The issue of search and seizure andconsequence thereupon, was taken up by the petitioner – assesseebefore the Settlement Commission. After hearing both theparties, a detailed order was passed. The liability of tax along withinterest was imposed but no penalty was fastened. The petitionerswere given immunity from the prosecution. In view of theaforesaid, the question remains as to whether persecution can becontinued in reference of the statement of Shri Sanjay Jain. In my opinion, statement of Shri Sanjay Jain was partof search and seizure and later on, subject matter of the decisiontaken by the Settlement Commissioner. The complete material waswith the Settlement Commission, thus it could have passed an S.B. CRIMINAL MISC. PETITION NO.793/2011(Dr. Gunjan Jain & Anr. Vs. Dy. Director of Income Tax, Jaipur) appropriate order while imposing tax along with interest. It couldhave been for penalty apart from the prosecution. The fact is,however, that other than imposition of tax with interest, penaltywas not imposed and at the same time, immunity from theprosecution has been given. The statement of Shri Sanjay Jaincannot be taken separately when it was part of the proceedings ofsearch and seizure and subject matter before the SettlementCommissioner. In view of above and subsequent events, the complaint would not be maintainable now so as the order ofcognizance. Accordingly, both are quashed. With the aforesaid, this criminal misc. petition is allowed so as the stay application. (M.N. BHANDARI), J. S/No.104Preeti, P.A. All cor r ect ion s m ad e in t h e j u d gm en t / or d er h ave been in cor por at ed in t h ej u dgm en t / or der bein g em ailed.j u dgm en t / or der bein g em ailed.