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TMI Blog1975 (12) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... his income. The summonses were issued to the accused but before the charge was framed an objection was taken to the further proceeding of the trial in view of section 279 of the Act. It was urged that the complaint had not been filed at the instance of the Commissioner and that the case could not proceed against the accused in view of the penalty being waived within the meaning of section 279(1A) of the Act. The contentions were not accepted by the Magistrate and the 1st Civil and Sessions Judge dismissed the revision. Certified copy of the judgment of the Tribunal in the appeal arising out of the penalty proceeding and of the Appellate Assistant Commissioner of Income-tax dismissing the appeal against the original assessment order as in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The effect of the various orders is that the appeal against the original assessment has been dismissed as infructuous ; the case under section 147 of the Act has been remanded to the assessing authority by the Income-tax Appellate Tribunal and the penalty imposed on the basis of original assessment has been set aside. On the basis of these facts it has to be seen whether the prosecution can continue or it has to be quashed. According to Subsection (1) a person can be proceeded against for an offence under section 277 only at the instance of the Commissioner. The evidence produced in the case shows that the Commissioner had authorised the prosecution. In view of the law laid down by the Supreme Court in the case of T. S. Baliah v. T. S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n an assessee under section 271(1)(c) of the Act, it may not be possible to hold that he has committed an offence under section 277 of the Act. But the question that arises for decision is whether the criminal court can refuse to proceed with the complaint on the finding given by the Income-tax Appellate Tribunal. The further question that arises is whether the order of the Income-tax Appellate Tribunal setting aside the penalty is equivalent to the order reducing or waving the penalty contemplated by subsection (1A) of section 279 of the Act. Taking the second question first, it seems that the order of the Tribunal is not contemplated by sub-section (1A) of section 279. Sub-section (1A) contains a bar to the institution or continuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denied that it is open to the Commissioner to prosecute a person for an offence under section 277 even if the penalty is not imposed. It can also not be disputed that the assessing authority may take proceedings for imposition of penalty and, at the same time, the Commissioner may take proceeding for prosecution of an assessee under section 277 of the Act. The moment at which the complaint was filed, therefore, there was no bar to the institution of the prosecution. The criminal court thus got jurisdiction to proceed with the complaint. That complaint has now to be disposed of in accordance with the procedure laid down in the Criminal Procedure Code. The accused can be acquitted or discharged in accordance with the provisional of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 277 provided the penalty imposed is subsequently cancelled by an appellate authority. Waiver and cancellation being two things, the reading of additional condition will be foreign to the existing provision. The same cannot, therefore, be read as implied in the section. Learned counsel for the applicant urged that this court should exercise its powers under section 561 A of the Code of Criminal Procedure and quash the prosecution in view of the findings recorded by the Income-tax Appellate Tribunal. In support of his contention, the learned counsel relied on the decision of R. P. Kapur v. State of Punjab AIR 1960 SC 866. Learned counsel has relied on the third category of cases mentioned by the Supreme Court where it was held that if there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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