9911796707
TMI Blog2003 (1) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... ings in different cases against him and this order at this stage will only deal with this prayer of the petitioner. By this order the aforesaid criminal miscellaneous cases are not being disposed of. Five different complaint cases have been lodged against the present petitioner for having committed the offence under section 276C of the Income-tax Act, 1961 (in short "the Act"). In all these criminal cases the learned Special Judge, Economic Offences, Patna, had passed an order taking cognizance of the offence under this provision of law and for issuing summons against the present petitioner. It is against this order passed in five different cases that the present criminal miscellaneous cases have been filed. The aforesaid complaint petitions against the present petitioner have been registered as Complaint Case No. 88(C) of 2002, Complaint Case No. 89(C) of 2002, Complaint Case No. 90(C) of 2002, Complaint Case No. 91(C) of 2002 and Complaint Case No. 92(C) of 2002. In the present petitions the petitioner has prayed that this criminal prosecution in the aforesaid cases and the entire proceeding against him including the order taking cognizance of the offence under the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng relied upon in the order of the Assessing Officer (opposite party No. 2) were obtained under duress and coercion and as such have got no evidentiary value in law. Annexure 4 will show the filing of the appeals before the Commissioner of Income-tax (Appeals)-II, Patna, on February 7, 2001. The petitioner has contended that the said appeals are pending adjudication before the Commissioner of Income-tax (Appeals)-II, Patna. In paragraph 14 of the petition the petitioner has contended that against the order in appeal passed by the Commissioner of Income-tax (Appeals) a second appeal lies to the Income-tax Appellate Tribunal which is a final fact-finding authority under the provisions of this Act. Further, the petitioner has contended that he has also filed an appeal against the order imposing penalty under the provisions of section 271(1)(b) of the Act. Relying on the case of CIT v. Bhupen Champak Lal Dalal [2001] 248 ITR 830 (SC), the petitioner has contended that during the pendency of this appeal before the Tribunal criminal cases pending before the competent court against the petitioner have to be stayed. Also he has placed reliance on the case of Banwarilal Satyanarain v. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Act, appeals were preferred either before the Commissioner of Income-tax (Appeals) or the Income-tax Appellate Tribunal. On the basis of the fact that those appeals were pending the assessees (opposite party) filed applications before the learned Metropolitan Magistrate to stay the proceedings against them. The learned Magistrate after examining the position in law as to whether the findings of the appellate authorities were relevant for the purpose of the criminal proceedings and to avoid conflicting decisions of the criminal court on the one hand and the appellate authorities on the other held that it would be appropriate to grant an interim order of stay by which he allowed the work of recording of evidence to proceed but stayed the passing of the order about framing of the charge or discharge of the accused or his acquittal during pendency of the appeals filed by the accused before the income-tax appellate authorities. Against this order a revision was filed before the learned sessions judge who dismissed the same. Thereupon, the matter was taken to the High Court, Mumbai, which by entertaining a writ petition and noticing several decisions of the said court as also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the criminal proceedings but it has not observed that it will act as a bar to granting of even the order of interim stay by a court under proper circumstances. In this connection my attention has been drawn to the fact that in the aforesaid case of CIT v. Bhupen Champak Lal Dalal [2001] 248 ITR 830 (SC), there was no claim for quashing of the proceeding though in the present case the quashing of the proceedings has also been prayed for. Learned counsel appearing on behalf of the petitioner has submitted that this will not make any difference. If the proceedings pending before the criminal court can be ordered to be stayed in a case where no prayer was made to quash the entire proceeding, it will be all the more necessary to stay the criminal proceeding i-, hen the prayer for quashing the entire proceedings has been made. He has pointed out that if the entire proceedings are quashed there would be no question of the prosecution of the petitioner. Hence, when the stay can be granted in a case in which no claim for quashing of the proceeding was made there would be no difficulty in granting of the stay in a case in which the claim for quashing the proceeding has been made since i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and section 277 as long as some proceeding under the Act in which there is a chance of success of the assesses is pending". From the aforesaid observations of the Supreme Court it will simply appear that the pendency of assessment proceeding will not be a bar to initiation of a proceeding under sections 276C and 277 of the Act. In the present case the criminal proceedings have already been instituted and the question before the court is whether under the facts and circumstances of this case, the order for the stay of any such proceeding can be passed or not. Therefore, the question of not instituting any such proceeding is not under consideration. For the present the prayer is only for the stay. This decision was also taken into consideration by the Supreme Court in the case of CIT v. Bhupen Champak Lal Dalal [2001] 248 ITR 830. The Supreme Court even after considering this decision did not think that the interim stay order granted by the High Court called for any interference at their hands. From the detailed discussions made above it becomes clear that under the facts and circumstances of this case the petitioner has been able to make out a case for the grant of interim sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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