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TMI Blog1986 (5) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Circle-3, Jaipur. The common question of law which is involved in all the cases is as to whether for filing a complaint under section 276C of the Act, it is necessary that there should be a regular assessment under the Act, against the assessee. On May 20, 1982, under the provisions of section 132(1) and (1A), search was conducted in the business premises and residential house of the accused situated in Dhamani Market and also at Bodala farm, Jaipur, after obtaining a search warrant. During that search, it is alleged that cash, precious and semi-precious stones and jewellery as well ascertain documents were found. The Income-tax Officer, after affording reasonable opportunity to the petitioners of being heard and after making an enq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused petitioners have wilfully evaded in any manner payment of any tax, penalty, interest chargeable under the Act, and he cannot be prosecuted under section 276C of the Act. His contention is also that even if it be assumed that they can be prosecuted, they should not be so prosecuted and the Assistant Incometax Commissioner should not rush for prosecution of, the accused unless there is a regular assessment order from which it can be said that the accused petitioners wilfully attempted in any manner whatsoever to evade any tax/penalty or interest chargeable or imposable under the Act. His further contention is that on the amount of tax sought to be evaded two different kinds of imprisonment's are provided under clauses (i) and (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by an authority under the Act subsequently in respect of the relevant assessment proceedings but that decision is no authority for the proposition that no proceedings can be initiated at all under section 276C and section 277, as long as some proceeding under the Act, in which there is a chance of success of the assessee is pending. ... " Their Lordships further observed as under (p. 700): " ... an appeal or reference under the Act cannot come in the way of the institution of the criminal proceedings under section 276C and section 277 of the Act. In the criminal case, all the ingredients of the offence in question have to be established in order to secure the conviction of the accused. The criminal court no doubt has to give due regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Kripalani, ITO [1986] 157 ITR 385 (Delhi), on which reliance has been placed by Mr. Khandelwal, learned counsel for the petitioners, it has been observed as under (p. 405): " In cases of offences, under the tax laws, it would be improper for the Department to rush with the prosecution without a proper determination by a competent authority, under the Act, of liability which is sought to be made the basis for the prosecution, even though such prosecution may not be incompetent. ... " It appears from a perusal of the above judgment that it has been held that the prosecution may not be incompetent in the absence of determination of tax liability. In the instant case, after a show-cause notice to the petitioners and after affording reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years other than 1980-81 and 1984-85. So far as the assessment years 1980-81 and 1984-85 are concerned, the regular assessment proceedings are still pending. So far as Laxmi Narain Dhamani is concerned, his regular assessment orders have been made for the years 1982-83 and 1983-84 and for the assessment year 1984-85, proceedings are pending. It may be stated that these assessment orders as aforesaid were only made by the Income-tax Officer having jurisdiction in the matter after the complaints had already been filed under section 276C. So far as the petitioner, Gopal Lal Dhamani, is concerned, for the assessment years 1981-82, 1982-83 and 1983-84, in his returns filed on September 28, 1983, he had shown his income as Rs. 17,700, Rs. 14,612 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gular assessment proceedings had not been finalised or if finalised in a few cases, appeals are pending. As already stated, the prosecution will have to establish the ingredients of the offence under section 276C, independently on the evidence placed before the court. No doubt, as in a few cases, regular assessment orders have been made, the court perhaps may have to take note of them. Similarly, if hereinafter, for the remaining years assessments are made or the assessment orders already made or to be made at any future dates are modified or set aside by the appellate court, the criminal court may have to take note of them. It may be that if a proper application is made before the learned trial court bringing circumstances therein and requ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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