N.K.KAPOOR, J. - (1.) PETITIONER seeks quashing of complaint Annexure P-1 under Section 276 C (1) of the Income Tax Act (for short 'the Act') read with Sections 193/467/471/34 of the Indian Penal Code (for short 'the Code') dated 28.11.1981 and the subsequent proceedings pending before the Chief Judicial Magistrate.
(2.) PETITIONER No. 1 M/s. Mohan Lal Darshan Kumar is a partnership firm registered under the Partnership Act and is engaged in the business of sale and purchase of Food grains, oil seeds, wine etc. Petitioners No. 2 to 3 are the partners of the firm. That on 28.11.1981 Income Tax Officer, Yamuna Nagar, lodged a complaint against the petitioner firm and its partners alleging commission of offence under Section 276 C (1) of the Act and under sections 193/467/471/34 of the Code, Annexure P-1. The petitioner firm moved an application before the Income Tax Settlement Commissioner under Section 245 (C) of the Act for settlement of its liability and all related matters in respect of the assessment years 1980-81, 1981-82 and 1982-83. In addition thereto, a prayer was made under section 245 (H) of the Act for grant of immunity from prosecution under the Act or under the Indian Penal Code. The Settlement Commissioner vide order dated 6.7.1985 allowed the application to be proceeded with in respect of the assessment years 1980-81, 1981-82 and 1982-83. Since the Judicial Magistrate had ordered for summoning of the petitioner, an application was filed before the Magistrate that since the Settlement Commissioner has granted the petitioner firm's application for settlement vide order 6.7.1985, the petitioners are liable to be discharged or in any case further proceedings be stayed till the matter was finally disposed of by the Settlement Commissioner. This application was dismissed by the Chief Judicial Magistrate on 5.11.1986. The Settlement Commissioner examined the matter and finding substance in the contentions raised by the petitioners accepted the application for settlement vide order dated 28.8.1990. The present petition has been filed for quashing of the complaint on the ground that since the matter has been finally settled as per Annexure P-5, the criminal proceedings no more survive. Learned counsel for the petitioner in support of his plea primarily relied upon the order passed by the Settlement Commissioner dated 28.8.1990 whereby the assessment in respect of the years 1980-81, 1981-82 and 1982-83 was commuted. It was also found that the assessee made true and full disclosure of his income and that there is no specific item or source of income which has been concealed. The department keeping in view the co-operation extended by the petitioner chose to impose no penalty under section 271(a), (b) and (c) as well as under section 273(3) of the Act. Since the very basis of the Criminal complaint stands resolved as per order Annexure P-5, the present complaint is nothing but an attempt to harass the petitioners. Thus in view of Annexure P-5 the complaint cannot succeed. The apex Court in case reported as Uttam Chand and others v. Income Tax Officer, Central Circle, Amritsar, 133 (1982) ITR 909 SC quashed such a complaint.
(3.) MR . R.P. Sawney, learned counsel for the department, however, challenges the contentions raised by the petitioners in support of his case for quashing of the proceedings. According to Mr. Sawhney, despite the alleged settlement vide Anexure P-5 right to prosecute in terms of section 245 (H) still survives. Despite the request made by the petitioner to grant him immunity from the prosecution, no-specific order was passed absolving the petitioners of the same and since this precise prayer has been declined by the Chief Judicial Magistrate no case for interference is made out under section 482 of the Code of Criminal Procedure for quashing of the pending complaint.;