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TMI Blog2017 (5) TMI 1424X X X X Extracts X X X X X X X X Extracts X X X X ..... n the impugned order dated 01.02.2013 passed by the Presiding Officer (Special Court), Economic Offences, Patna, in Complaint Case taking cognizance against the petitioner under Section(s) 276(1) and 276(2) of the Income Tax Act. - Criminal Miscellaneous No. 41483 of 2013 - - - Dated:- 16-5-2017 - Sanjay Priya, J. For the Petitioners : Mr. D. V. Pathy, Advocate For the Opposite Partys : Mr. Rishi Raj Sinha, Sr. SC Ms. Archana Prasad, Jr. SC JUDGMENT 1. This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 01.02.2013 passed by the Presiding Officer (Special Court), Economic Offences, Patna, in Complaint Case No.24(C) of 2013 by which the Court below has taken c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02,02,760/-. 5. The return so filed by the accused was selected for its scrutiny. The Assessing Officer issued notice to the accused to produce all books of accounts, other papers and documents in support of its returns. The accused in compliance thereto produced all papers and books of accounts etc. The Assessing Officer thereafter completed the assessment at a total income of ₹ 1,69,88,170/- under Section 143(3) of the Act. 6. The Fodder Scam came into light in the State of Bihar during 1995-96. First Information Report was lodged by the State of Bihar and the case was handed over to the Central Bureau of Investigation. The accused named in the First Information Report was taken into custody. The petitioner-accused remained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 234 B of the Income Tax Act. Penalty under Section 271(1)(c) of the Income Tax Act were also initiated. 10. The petitioner-accused filed an appeal before the first appellate authority i.e. learned Commissioner of Income Tax (Appeals) aggrieved with the order of assessment that additions were made without an independent enquiry. Learned Commissioner of Income Tax (Appeals) after hearing the parties set aside the assessment for making the same de novo. Learned Commissioner of Income Tax (Appeals), however, held that initiation of proceedings was bad in law. 11. The accused aggrieved with the order under appeal passed by the learned Commissioner of Income Tax (Appeals) filed an appeal before the Hon ble Income Tax Appellate Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipated in proceeding of assessment, the service of notice under Section 127 were not material. The Hon ble High Court held that even though no such notice under Section 127 or 148 was issued, the proceedings were valid. The Hon ble High Court, accordingly, held that no substantial question of law arose for consideration in the appeal by order dated 09.05.2012 passed in M.A. No.140 of 2006. 15. The petitioner-accused being aggrieved with the order of the Hon ble High Court filed Special Leave petition before the Hon ble Supreme Court of India. The petitioner-accused in the petition before the Hon ble Supreme Court has submitted that transfer of case from learned Commissioner of Income Tax, New Delhi, to learned Commissioner of Income Tax, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kejriwal Vs. State of West Bengal reported in [2011] 333 ITR 58 (SC) and has argued that on exoneration in adjudication proceedings, no case for criminal proceedings thereafter on same facts. 21. In this manner, after looking into the submission made on behalf of both the parties and the materials available on record, it appears that accused (petitioner) being aggrieved with the order of assessment filed appeal before the first appellate authority i.e. learned Commissioner of Income Tax (Appeals). The learned Commissioner of Income Tax (Appeals) set aside the assessment order and ordered for making the same de novo. The accused aggrieved with the aforesaid order of learned Commissioner of Income Tax (Appeals), filed an appeal before Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Supreme Court on exoneration of the person concerned in adjudication proceeding on merits, criminal proceeding on the same facts and circumstances cannot be allowed to continue. 24. In the instant case from the facts mentioned, in detail, it is apparent that the petitioner has not been exonerated by the Income Tax Department in the adjudication proceeding till date. The assessment done by the Income Tax Department has been upheld by the Hon ble High Court by order dated 09.05.2012 passed in M.A. No.140 of 2006 annexed as Annexure-4 to the application. As per own averment of the petitioner, Special Leave Petition filed by the petitioner is still pending in the Hon ble Supreme Court of India. 25. In such circumstances, this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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