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TMI Blog2018 (9) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... n 482 Cr.P.C. where questions of fact cannot ordinarily and in absence of evidence of unimpeachable character to the contrary be properly inquired into or adjudicated upon. There is no case made out for any interference by this Court in the ongoing criminal prosecution of the petitioner on the complaint of the respondent. - CRL. M.C. 4666/2015 & CRL. 16736/2015 - - - Dated:- 20-8-2018 - MR. R.K. GAUBA J. Petitioner Through: Mr. R.K. Handoo Ms. Aditya Chaudhary, Advs. Respondent Through: Mr. Zoheb Hossain, Sr. Standing counsel for Income Tax Department. ORDER (ORAL) 1. On the criminal complaint (CC No. 96/2004) dated 27.01.2015 of the respondent, the petitioner was summoned as (second) accused by the Additional Chief Metropolitan Magistrate (ACMM), by his order dated 30.01.2015, the other (first) accused being Moin Akhtar Quereshi. The criminal complaint was filed, inter alia, on the strength of sanction for prosecution under Section 279 of Income Tax Act, 1961 accorded by the Director of Income Tax (Investigation) - 02, Delhi on 09.01.2015. 2. The background facts, as set out in the criminal complaint, would reveal that a search and seizure action was car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder allowing the said settlement applications to be proceeded with further . It is the submission of the petitioner that, upon such application for settlement being entertained by the Settlement Commission, and the order under Section 245-D (1) of the Income Tax Act, 1961 being passed thereupon allowing such applications to be proceeded with further , by virtue of the provision contained in Section 245-F, the other income-tax authorities were rendered functus officio and, therefore, the grant of sanction for prosecution on 09.01.2015, and the filing of the criminal complaint on 27.01.2015, were impermissible and bad in law; this, in the submission of the petitioner, rendering the summoning order vitiated and the consequent proceedings in the criminal case an abuse of the process of court. Reliance is placed by the petitioner on decisions of learned single Judges of this Court and of the High Court of Punjab Haryana reported as Dr. Mrs. Geeta Gupta vs. Inspecting Assistant Commissioner of Income Tax (Assessment), Range XIV, New Delhi Anr. (1986) ILR 1 Delhi 521, and R.I. Chadha ors. vs. Income Tax Officer (1987) 681 ITR 591 (P H). 6. Per contra, the learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d guidelines as to the further procedure to be followed in the wake of initial order of the Commission allowing the application to be proceeded with . 10. The prime argument raised by the petitioner is with reference to the provision contained in Section 245-F ( powers and procedures of Settlement Commission ) which, to the extent relevant, reads thus:- (1) In addition to the powers conferred on the Settlement Commission under this Chapter, it shall have all the powers which are vested in an income-tax authority under this Act. (2) Where an application made under section 245C has been allowed to be proceeded with under section 245D, the Settlement Commission shall, until an order is passed under sub-section (4) of section 245D, have, subject to the provisions of sub-section (3) of that section, exclusive jurisdiction to exercise the powers and perform the functions of an income-tax authority under this Act in relation to the case : (emphasis supplied) 11. It is pointed out by the counsel for the petitioner that once the Settlement Commission permits a settlement application to be proceeded with in terms of its jurisdiction under Section 245-D, so long as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Settlement Commission is to be granted immunity from prosecution and penalty, is a matter that is required to be considered and decided by the Settlement Commission this, having regard to his conduct vis- -vis the expectation of full and true disclosure and cooperation with the proceedings before the Commission. From this, it naturally follows that merely the order under Section 245-D (1) allowing the application for settlement to be proceeded with cannot be equated with an order granting immunity from prosecution. Having regard to the scheme of the law, necessarily the order granting or declining immunity and, if there is an order granting immunity specifying the conditions attached thereto, would be a directive that would come later in sequence and chronology to the order allowing the settlement application to be proceeded with . It is not correct to contend that merely because, by virtue of Section 245-F, the powers to deal with the case in question by the income tax authorities stand taken away or the same vest in the Settlement Commission so long as the matter remains pending with it, the power, by law, vested in the income-tax authorities to initiate crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operly inquired into or adjudicated upon. In this context, the following observations of the Supreme Court in Rajiv Thapar and Ors. Vs. Madan Lal Kapoor, (2013) 3 SCC 330 need to be borne in mind:- 29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 Cr.PC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their def ..... X X X X Extracts X X X X X X X X Extracts X X X X
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