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TMI Blog2007 (4) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... e offence alleged against them in C.C.No.127 of 1991. The learned trial judge, after going through the affidavit to the petition and also the counter filed by the respondent, has dismissed the petition. Aggrieved by the findings of the learned trial judge, the accused have preferred a criminal revision petition No.136/1993 before the II Additional Sessions Judge, Coimbatore. The learned Sessions judge, after giving due deliberations to the submissions made by the learned counsel on both sides and after going through the oral and documentary evidence let in before the trial Court, has allowed the revision thereby setting aside the order passed in Crl.M.P.No.2597 of 1992 in C.C.No.127 of 1991, resulting discharge of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neously be initiated against an income tax evader. The learned Special Public Prosecutor would contend that the reasoning of the learned Sessions judge that since penalty has been imposed on the accused he cannot be prosecuted cannot be a sound reasoning. In support of this contention the learned Special Public Prosecutor would rely on 149 ITR 696 (P. Jayappan Vs. S.K. Perumal), wherein it has been held by the Honourable Apex Court that section 279(1A) does not provide that the mere fact that there is a possibility of the Commissioner passing an order waiving or reducing the penalty imposed or imposable on the accused under Section 271(1)(c), prosecution for an offence under Section 276(C) or 277 shall not be instituted. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the penalty proceedings before the institution of the prosecution and, therefore, as long as the penalty proceedings were pending, the criminal proceedings could not be instituted." So the first reasoning given by the learned Sessions Judge that since penalty has been levied under Ex.P.15, prosecution against the accused cannot be proceeded with is erroneous. 3(b) The next ground on which the learned Sessions Judge has allowed the revision was that one Sampath, Managing Partner of A1-partnership firm had filed the income tax return for A1-partnership firm for the assessment year 1980-1981 and according to the prosecution, the concealment of income by A1-partnership firm was to the tune of Rs.2,20,000/- and that for this lapse a penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1980 -1981, the concealment of income of Rs.2,20,000/- has been admitted and besides that it has also been admitted that the income from Kalinga Iron Works to the tune of Rs.66,000/- was also not disclosed. But as far as the concealment of Rs.66,000/- from out of the income from Kalinga Iron Works (twice) the evidence of P.Ws.1 to 3 are silent. But P.W.3 in his evidence in chief-examination would state that the income of Rs.66,000/- was stated in the revised return submitted by A1-partnership firm. But under Ex.P.15, order of levy of penalty, it is silent with regard to the concealment of the income of Rs.66,000/-. In this context the learned Special Public Prosecutor would rely on Ex.D.1, letter written by A2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petitioners 2 to 6 were also responsible for the day-to-day conduct of the business of the company." 4. The learned Special Public Prosecutor relied on 223 ITR 68 Income tax officer Vs. Dinesh K.Shah and others, wherein a bench of this court have held that in a case against a partnership firm notice need not be sent to each and every partner. The dictum laid in the said ratio decidendi is as follows:- "In this context, a person 'in charge' must mean a person in over all control of the day-to-day business of the company or firm or other association. Therefore, any person who at the time the offence was committed was in charge of and was responsible to the company, which includes a firm, for the conduct of the business, can be proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment year 1980-1981 in which he had concealed the income of Rs.2,20,000/-. So under such circumstances, I do not find any reason to interfere with the orders of the learned first appellate judge in discharging A2 to A9 (A4 and A6 died). Admittedly A1-partnership firm is responsible for the concealment of the income of Rs.2,20,000/- for which A1 (represented by managing partner S.Ramesh) necessarily to be prosecuted. Point is answered accordingly. 6. In fine, the revision is partly allowed with the following modification in the order in Crl.R.P.No.136 of 1993 on the file of the II Additional Sessions Judge, Coimbatore :- The prosecution against A1 represented by managing partner S.Ramesh is to be proceeded with, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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