High Court Of Patna
Medivet & Ors. vs. CIT & Anr
Sections 276C, 277, 278
M. Saran, J.
CR. Misc. No. 27554 of 2002
8th February, 2007
JUDGMENT
M. Saran, J. :
In this miscellaneous application, the prayer is for quashing the entire proceedings including the order of cognizance dt. 3rd Jan., 2000, passed by the learned Special Judge, Economic Offences, Patna, in Compliant Case No. 395(C)/99 by which he has issued processes against the petitioners and others for facing trial for the offences punishable under ss. 276C, 277 and 278 of the IT Act, 1961 (in short as the Act). It is said that petitioner No. 1 is a partnership firm of which petitioner No. 2, Sri Sarad Kumar, is one of the partners. Petitioner No. 3 is an accountant of the said firm. The facts of the case, in short, are that opposite party No. 2 filed a petition of complaint in the Court of the Presiding Officer/Special Judge, Economic Offences, Civil Court, Patna, alleging therein that a search was conducted in the case of Sanwin Pharmaceuticals at its office situated in Merchant Building, 9/12, Lal Bazar Street, Calcutta 1, in June, 1996, and during the search some documents pertaining to the assessee/petitioners were seized and in pursuance thereof an assessment was made under the provisions of ss. 158BC and 158BD r/w s. 144 of the Act at a total income of Rs. 11,87,85,570 only and in the said assessment it has been established that the supplies of medicines and cattle feed, etc., to the Animal Husbandry Department, Government of Bihar, as claimed by the firm in their return of income filed earlier were never made and that wrong claim of expenses in the return was made on the basis of bogus purchases. It is alleged that the petitioners on the basis of the aforesaid facts have committed offences punishable under ss. 276C, 277 and 278 of the IT Act. The sanction of opposite party No. 1 has also been obtained. Thereafter, a petition of complaint as mentioned above was filed on the basis of which cognizance has been taken.
It has been submitted on behalf of the petitioners that the order of assessment which is the basis of the complaint is an appealable order and the appeal has been preferred on 29th June, 2001, before the CIT(A) and therefore, the present complaint till the disposal of appeal should not proceed with. He also submitted that even the order passed by the Court of appeal is appealable before the Tribunal and in case the same is allowed then the whole prosecution would fall. On the other hand, learned standing counsel supported the impugned order and submitted that no interference is required by this Court. Now coming to the argument of the petitioners’ counsel this Court finds that the pendency of assessment, appeal or other proceedings under the IT Act by itself does not preclude the Department from launching a prosecution. The Criminal Court in an appropriate case however, may stay the proceedings in view of such pendency where the Court takes a view that the conclusion arrived at by the appellate authority under the Act would have relevance upon the decision to be reached by the Criminal Court. It appears from the impugned order of cognizance that the learned Judge after being satisfied that a prima facie case has been made out, took cognizance under ss. 276C, 277 and 278 of the IT Act, 1961. The impugned order of cognizance indicates application of judicial mind and satisfaction of the learned Judge. In the facts and circumstances of the case, at present, this Court finds no error in the order of cognizance. The continuation of criminal proceeding therefore, at this stage cannot be accepted to be an abuse of process of the Court. This application is accordingly dismissed. However, the petitioners will be at liberty to file an application before the Court below for stay of the proceeding and if such application is filed then the same shall be considered and disposed of in accordance with law in the light of the decision of the apex Court given in the case of CIT vs. Bhupen Champak Lal Dalal (2001) 167 CTR (SC) 283 : (2001) 248 ITR 830 (SC) : (2001) 3 SCC 459.
[Citation : 291 ITR 209]
