9911796707
TMI Blog2011 (2) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... . At the very outset, it is pertinent to mention that the petitioners have not bothered to mention in the present petition as to when the case was transferred to the court of Special Judge, Economic Offences, Patna and as to whether petitioners had ever appeared before the court below in the said proceeding. 2. Short fact of the case is that after obtaining sanction from the Commissioner of Income Tax under Section 279(1) of the Income Tax Act, 1961 (hereinafter referred to as the I.T. Act) the Income Tax Officer, Bhagalpur had filed a complaint vide Complaint Case No. 47 of 1992 in the Special Court of Economic Offences, Muzaffarpur against petitioners and one another namely Smt. Rajmani Devi on allegation of commission of offences under Sections 276C, 276D & 277 of the Income Tax Act. It was disclosed in the complaint petition that petitioner no. 1 was an unregistered firm (U.R.F.) and petitioner nos. 2 to 4 and one another were partners of accused no. 1 and equally responsible for every act of omission and commission of the said firm. The said firm had derived income from manufacturing steel furnitures as well as contract works and income tax return was filed on 1.9.1989 showin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12,000/- ---------------------------------- Rs. 4,61,090/- 3. It was further observed that assessee's turn over including the turn over of M/s Deepak Electricals exceeded Rs. 40 lakhs and the accused failed to get the accounts audited under Section 44AB. Since the original return was not filed under Section 139(1) of the Income Tax Act, the revised return was not applicable under Section 139(5) of the Income Tax Act. In view of the facts it was alleged by the complainant that the accused wilfully attempted to evade tax, interest or penalty chargeable or imposable under the Act by concealing the true particulars of income and accused signed the return and made statement in verification of return or delivered an account or statement which they either knew or believed to be false or did not believe to be true and the accused also wilfully failed to produce such accounts and documents despite service of notices and as such, accused had committed offences punishable under Sections 276C, 276D & 277D of the Income Tax Act, 1961 (hereinafter referred to as the I.T. Act). Since it was an official complaint which was filed alongwith sanction under Section 279(1) of the Income Tax Act the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was determined by the Assessing Officer nothing remains on record indicating either violation of any provision or commission of any offence and as such, the proceeding before the court below is simply an abuse of the process of the court which requires to be quashed. 6. Sri Jain, has further argued that in the entire complaint petition or even in sanction order which was granted by the Commissioner, Income Tax under Section 279(1) of the Income Tax Act nothing has been whispered as to whether any of the partners of petitioner no. 1 had committed any act attracting penal provisions. It was submitted that all along in the complaint petition it was alleged that petitioner no. 1 i.e. M/s Deepak Engineering Works (U.R.F.) had committed offences as alleged by the complainant. It was submitted that in any event, the firm cannot be imposed any punishment for undergoing sentence and as such, no purpose will be served in allowing continuance of the proceedings before the court below. 7. Sri Jain has emphatically argued that had there been a case of concealment or evasion of the tax, the Income Tax Authority would have initiated penalty proceeding. It was submitted that in this case pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vised to avail those remedies before the court below. 11. Besides hearing learned counsel for the parties, I have also perused the materials available on record. 12. The first plea which has been taken by Sri K.N. Jain, learned senior counsel for the petitioner that since in the petition there is no specific averment of commission of any of the offences by the petitioner nos. 2 to 4 they cannot be prosecuted is concerned, the court is of the opinion that this submission is simply required to be noticed for its rejection. First of all in the complaint petition there was specific averment that petitioner nos. 2 to 3 and one other were partners of petitioner no. 1 which was an unregistered firm (U.R.F.). In the complaint petition there is specific averment that accused nos. 2 to 4 being partners of accused no. 1 M/s Deepak Engineering Works were equally responsible for every act or act of omission and commission of the said firm. Under Section 278B of the Income Tax Act, all the partners were equally responsible for commission of any offence by the company / firm. At this stage the court is tempted to quote Section 278B of the Income Tax Act which is as follows: 278B. (1) Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d above, makes it clear that onus lies on the Partners or Directors to prove that they were not responsible for acts of omission or commission committed by the firm / company. The question as to whether petitioner nos. 2 to 4 were actually involved in this case or not is a question of fact which is to be determined during the trial and onus is on the petitioners to prove that they were not responsible for any act of omission or commission of the firm i.e. petitioner no. 1 M/s Deepak Engineering Works. Accordingly, in view of statutory provisions contained in Section 278B of the Income Tax Act (hereinafter referred to as the I.T. Act) first submission of learned counsel for the petitioner is not sustainable. 14. So far as the ground taken by Sri Jain that the assessment order has already been unsettled, and as such, criminal proceeding is not sustainable is concerned, I am of the view that same is not the position in the present case. From the complaint petition, it is evident that, return was filed for the assessment year 1989-1990, showing total income of Rs. 49,470/-. Even after final order of re-computation, it has been computed as Rs. 88,510/- i.e. just double to the in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
