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TMI Blog2011 (8) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... criminal proceedings on the basis of the said penalty would be nothing but an abuse of process of law - Amnesty scheme was introduced and the petitioners availed benefit of the same and had surrendered the amount of Rs. 3,15,000/- by furnishing revised return on 27.3.1986 and had paid the tax accordingly on the said amount. The addition of Rs. 35,000/- made in the assessment order was made on the basis of levy of penalty and since the penalty had been deleted, the said addition was also liable to be ignored - Decided in favour of assessee. - M-37034 of 2001 - - - Dated:- 8-8-2011 - Sabina, J P.K. Jain, Adv., for the Appellant JUDGEMENT Sabina: Petitioners have filed this petition under Section 482 of the Code of Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn were accepted. However, the claim of the petitioners, qua the amount of Rs. 35,000/- was disallowed. The said order was confirmed in appeal. Vide order dated 05.12.1994, the appellate tribunal recalled the finding qua levy of interest of Rs. 35,000/- in question. Thereafter, the petitioners moved an application for deletion of penalties and vide order dated 12.1.2000, Commissioner of Income Tax (Appeals) XXVI ordered that the penalty imposed by the Assessment Officer be deleted. Learned counsel has submitted that in view of the above factual position, the criminal proceedings against the petitioners were liable to be quashed as now nothing remained due against the petitioners. Learned counsel for the petitioners has placed reliance on 'K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the order of the Tribunal and the consequent cancellation of penalty, it will be an idle and empty formality to require the appellants to have the order of the Tribunal exhibited as a defence document inasmuch as the passing of the order as aforementioned is unsustainable and unquestionable." Learned counsel has also placed reliance on 'Gupta Constructions Co. and others versus Income-Tax Officer and others, 2003 (Vol. 260) Income Tax Reports 415 (P and H), wherein it was held as under:- "In view of the judgment of the Supreme Court, mentioned above, wherein, it has been held that if the penalty proceedings have been set aside in the deparmental proceedings then the very basis of launching of the prosecution against the assessee s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code. (5) Where the alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that concealment had been detected during original assessment proceedings and the surrender made in the Amnesty Scheme was not true because the interest of Rs. 35,000/- had not been surrendered. Vide order dated 17.1.1992, the petitioners were ordered to be summoned to face the trial. Thereafter, the petitioners moved the applications seeking their discharge. Vide order dated 04.4.2001, the applications were dismissed. Learned trial court held that the petitioners had surrendered certain amount well after the detection by the assessment authority and were, hence, not entitled to immunity from prosecution under the Amnesty Scheme notwithstanding the order passed by Commissioner of Income Tax (Appeals). Reliance was made on questions No. 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income Tax (Appeals) held as under:- "I have carefully considered the rival contentions and gone through the relevant documents and the cases relied upon by the assessee. I am of the view that keeping in view the clarifications to the Board's Circulars No. 423 dated 26.6.85 and 432, 439, 440 and 441 dated 15.11.1985 and further Board's Circular No. 451 dated 17.2.1986, the surrendered amount of Rs. 3,15,000/- could not be considered for the purpose of levy of penalty u/s 27(1)(c) of the Act. My view also finds support from the decisions relied upon by the assessee. So far as the other addition of Rs. 35,000/- made in the asstt. Order which has also been made the basis for levy of penalty, even that addition does not survive in view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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