Bombay H.C : The prosecution is launched against these applicants under ss. 276C(1)(i), 277 and 278B of the IT Act, 1961.

Counsel Appeared

O.P. Soni, for the Petitioner : D.T. Palekar, for the Respondent : Smt. Usha Kejarwal, for the State Note.

This judgment of the High Court stands affirmed by the Supreme Court in CIT vs. Bhupen Champaklal Dalal & Anr. (2001) 167 CTR (SC) 283

JUDGMENT

P.S. PATANKAR, J. :

Leave to amend. The prosecution is launched against these applicants under ss. 276C(1)(i), 277 and 278B of the IT Act, 1961. This is for wilful evasion of tax and making false statements in the verification knowingly. This was done as a director of the company and by the company. In Crl. Appln. No. 610 of 1999, prosecution is also launched under s. 35B of the WT Act, 1957, in addition. The reassessment orders which are passed in these matters are challenged before the Tribunal, etc. Those appeals are pending. The question that arises is whether during the pendency of these appeals the prosecutions in the present cases should proceed or not. The learned Addl. C.M.M. Mumbai, has directed to proceed regarding recording of evidence. This is confirmed by the learned Addl. Sessions Judge. Greater Mumbai, by order, dt. 12th Oct., 1998. I find that at least four learned single Judges of this Court have taken the view that the criminal proceedings should be stayed, i.e., Criminal Revisional Appln. No. 251 of 1985, with Crl. Revisional Applin. No. 252 of 1985, dt. 27th June, 1986, judgment reported in Mohanlal Mahabir Prasad (Firm) vs. CIT (1991) Mh LJ 984 (Bom) and Vinodkumar Bajranglal Choudhary vs. Asstt. CIT (1994) Tax LR 488 (Bom) : (1996) Crl. LJ 449. Learned counsel for the petitioner has also cited the judgment reported in G.L. Didwania vs. ITO (1997) 140 CTR (SC) 273 : (1997) 224 ITR 687 (SC) : TCS48.3888. But it relates to quashing of the criminal proceedings in view of the Tribunal taking the view that there was no false statement made regarding the income of the assessee and there was no escaped assessment.

Learned counsel appearing for the respondent have cited the judgment of the learned single Judge of the Punjab and Haryana High Court in Telu Ram Raunqi Ram vs. ITO (1984) 39 CTR (P&H) 93 : (1984) 145 ITR 111 (P&H) : TC 48R.509. It was a case where penalty was imposed on the assessee. The appeal filed by him was dismissed. The assessee obtained a reference to the High Court which was pending. It was held that expectancy of favourable finding in reference is no ground to stay criminal proceedings. Another judgment of the Supreme Court is cited viz., P. Jayappan vs. S.K. Perumal, ITO (1984) 42 CTR (SC) 180 : (1984) 149 ITR 696 (SC) : TC 48R.501. It was dealing with initiation of the criminal proceedings under ss. 276C and 277 of the IT Act r/w ss. 193 and 196 of the IPC. The apex Court held that even though reassessment proceedings are pending, the Department is free to institute criminal proceedings. This cannot be attracted in the present case as the question is not of initiation. Further judgment notice can be taken of the fact that the Courts of the Metropolitan Magistrates are flooded with work. In view of this, I pass the following order. Rule. Interim order in terms of prayer (c), Amendment to be carried out within one week. However, it is made clear that in case the appeals filed by the petitioners are dismissed, the criminal prosecutions to proceed. Further liberty to the respondents to move the Appellate Income-tax Authority to hear the appeals as early as possible and expeditiously. Liberty to mention after the appeals are decided. The respondent’s advocate prays for stay of this order. Stay refused. Certified copy expedited.

[Citation : 248 ITR 827]