Delhi High Court
Smt. Sheela Gupta vs Inspecting Assistant ... on 3 September, 2001
Equivalent citations: 2001 119 TAXMAN 708 Delhi
Author: Sodhi
JUDGMENT
Sodhi, J.
Criminal Writ No. 560 of 1991 has been filed with a prayer for quashing of criminal complaints bearing number 2667 to 2772 of 1998 and proceedings filed on 29-3-1988 as also the summoning order dated 4-7-1988.
Criminal Writ No. 560 of 1991 has been filed with a prayer for quashing of criminal complaints bearing number 2667 to 2772 of 1998 and proceedings filed on 29-3-1988 as also the summoning order dated 4-7-1988.
2. It is the contention of the learned counsel for the petitioner before me that the substratum of the complaint was that the income of Century Plastics had escaped the assessment in the hands of Shiv Charan Gupta, who has, therefore, committed an offence under sections 276C and 277 of the Income Tax Act, 1961. It is also the case put by the department that the petitioner herein Smt. Sheela Gupta had abetted in filing a false return/verification and, therefore, had abetted Shiv Charan Gupta in the offence. Consequently, she was sought to be prosecuted under section 277 and 278. The assessment orders were taken up in appeal where the first appellate authority upheld the assessment vide orders dated 10-2-1987, 29-1-1987 and 15-1-1993. Being aggrieved with the aforesaid orders, the petitioner herein filed a further appeal before the Tribunal. The Tribunal vide order dated 7-5-1991, after going through the matter, set aside the orders of the appellate authority and remanded the cases for fresh adjudication to the Income Tax Officer. He submits that in view of the facts that the assessments, which gave rise to the complaint, have ultimately, been set aside by the Tribunal, the substratum of the complaint so no longer subsists, no prosecution pursuant thereto could be maintained. He draws my attention to the judgment of the Supreme Court in G.L. Didwania v. ITO (1997) 224 ITR 687 (SC) where it has been held that once the assessment has been set aside, prosecution thereon could not be sustained.
2. It is the contention of the learned counsel for the petitioner before me that the substratum of the complaint was that the income of Century Plastics had escaped the assessment in the hands of Shiv Charan Gupta, who has, therefore, committed an offence under sections 276C and 277 of the Income Tax Act, 1961. It is also the case put by the department that the petitioner herein Smt. Sheela Gupta had abetted in filing a false return/verification and, therefore, had abetted Shiv Charan Gupta in the offence. Consequently, she was sought to be prosecuted under section 277 and 278. The assessment orders were taken up in appeal where the first appellate authority upheld the assessment vide orders dated 10-2-1987, 29-1-1987 and 15-1-1993. Being aggrieved with the aforesaid orders, the petitioner herein filed a further appeal before the Tribunal. The Tribunal vide order dated 7-5-1991, after going through the matter, set aside the orders of the appellate authority and remanded the cases for fresh adjudication to the Income Tax Officer. He submits that in view of the facts that the assessments, which gave rise to the complaint, have ultimately, been set aside by the Tribunal, the substratum of the complaint so no longer subsists, no prosecution pursuant thereto could be maintained. He draws my attention to the judgment of the Supreme Court in G.L. Didwania v. ITO (1997) 224 ITR 687 (SC) where it has been held that once the assessment has been set aside, prosecution thereon could not be sustained.
3. The learned counsel for the Income Tax Department submits that in the absence of the writ petition being filed by Shiv Charan Gupta and Mr. S.C. Jain, the benefit of any order of this court, that may accrue to the writ petitioner, cannot be passed on to Shri Shiv Charan Gupta and Shri S.C. Jain. I have heard the learned counsels for the parties.
3. The learned counsel for the Income Tax Department submits that in the absence of the writ petition being filed by Shiv Charan Gupta and Mr. S.C. Jain, the benefit of any order of this court, that may accrue to the writ petitioner, cannot be passed on to Shri Shiv Charan Gupta and Shri S.C. Jain. I have heard the learned counsels for the parties.
4. It goes without saying, in the facts and circumstances of this case, that the matter is squarely covered by the judgment of the Supreme Court in the case of G.L. Didwania (supra). I, therefore, have no hesitation in allowing the writ petition and quashing the complaints. As regards the objection taken by the learned counsel for the respondents, suffice it to say that if the substratum of the case falls, benefit thereof would ensure to all the accused.
4. It goes without saying, in the facts and circumstances of this case, that the matter is squarely covered by the judgment of the Supreme Court in the case of G.L. Didwania (supra). I, therefore, have no hesitation in allowing the writ petition and quashing the complaints. As regards the objection taken by the learned counsel for the respondents, suffice it to say that if the substratum of the case falls, benefit thereof would ensure to all the accused.
5. With this, Criminal Writ No. 560 of 1991 is allowed.
5. With this, Criminal Writ No. 560 of 1991 is allowed.
