- (1.) This criminal misc. petition has been filed under section 482 Cr.P.C. by the petitioner with the following prayer: It is, therefore prayed that the petition of the petitioner may kindly be allowed and an appropriate order or direction, Hon'ble Court may be pleased: (a) The record of the criminal case No. 473/2002 Income Tax Officer, Central Circle-1, Income Tax Department Jaipur vs. Badri Narayan Modi pending in the court of Special Judicial Magistrate (Economic Offences), Rajasthan, Jaipur may kindly be summoned and examined. (b) The impugned order dt. 22.11.2002 passed by the learned trial court in the aforesaid criminal case vide which the non-bailable warrant were issued against the petitioner by the Special Judicial Magistrate (Economic Offences), Rajasthan, Jaipur may kindly be set aside. (c) The complaint proceedings initiated by the respondent No. 1 be quashed and set aside and the accused petitioner may be ordered to be discharged. (d) any other appropriate order or direction which maybe considered just and proper in the facts and circumstances of the case may kindly also be given in favour of the petitioner. Brief facts of the case are that the petitioner is carrying on the business of Gem, Stone and Jewellery for more than 25 years at Jaipur. The respondent No. 1 is assessing officer of the Income Tax Department having jurisdiction over the petitioner. The income tax department carried out search and seizure operation under section 132 of the Income Tax Act on 10th July 20002 at the business and residential premises belonging to the petitioner and its family members and also at its associated business concerned. The said search and seizure operations were concluded on 19th July, 2002. During the course of search, the Income Tax Department showed their inclination to seize the personal Jewellery of the petitioner and their family members valued at approximately Rs. 11.00 lacs by provisionally determining the undisclosed Jewellery to that extent. They accepted the offer of the petitioner to seize Rs. 11 lac in cash in lieu of seizing the Jewellery worth Rs. 11 lacs and accordingly the petitioner arranged the said money for seizure by withdrawing the amount from the Bank. Certain papers and documents were also seized during the course of said search operations. Thereafter the respondent No. 1 issued notice under section 158BC of the Income Tax Act to the petitioner on 8th August, 2002 by which the petitioner was required to prepare a return of undisclosed income of the block period and file the same within 45 days of the service of the notice. The petitioner complied with the said notice by furnishing the return of block period on 3rd October, 2002 in the prescribed form. The petitioner filed the said return at Rs. NIL and explained his action vide letter dated 3rd October, 2002 that he has opted to move to the Settlement Commission for Settlement of his case and has offered the undisclosed income before the Settlement Commission. He has also requested that in case the settlement application is not being allowed to be proceeded with by the Settlement Commission then the amount disclosed in the settlement petition be considered as his undisclosed income for the block period. The petitioner filed an application for settlement of his case under section 245C of the Income Tax before the Income Tax Settlement Commission, Principal Bench, New Delhi on 3rd October 2002 which fact stood informed to the respondent No. 2 vide letter dated 3rd October, 2002. The Income Tax Department was earlier of the view that since there is a special procedure for assessment in search and seizure cases under the Income Tax Act contained in Chapter XIV B of the Act titled as "Special Procedure for Assessment" and popularly known as 'Block Assessment', there cannot be any 'Settlement' in search and seizure cases. On reconsideration of the issue, the Central Board of Direct Taxes New Delhi issued an instruction numbering 1962 dated 12.2.1999 to all the Income Tax Authorities clarifying that the tax payers are entitled to approach the Settlement Commission even where block assessment pursuant to search and seizure action is pending in cases of such tax payers. The learned counsel appearing for the petitioner has contended that once a tax payer files any settlement application under section 245C of the Income Tax Act, he is not entitled to withdraw the same by virtue of provisions contained in Section 245C(3) of the Income Tax Act. Once the settlement application is admitted by the Settlement Commission, then the petitioner has to pay the admitted tax and the Income Tax Authorities ceased of their jurisdiction and the assessment is to be finalized by the Settlement Commission and thus the whole exercise of assessment by Income Tax Authorities becomes futile and further if the settlement application is not admitted by the Commission then the Income Tax Authorities get the additional time for completion of the assessment. It is further contended by the counsel for the petitioner that the respondent No. 1 issued notice under section 143(2) to the petitioner for appearance on 11.10.2002 on which date, the matter was adjourned on an oral request but the respondent No. 1 kept up the pressure on the petitioner by fixing the next date of hearing on next working day itself i.e. 16.10.2002. The respondent No. 1 also issued a summon under section 131 of the Income Tax Act to the petitioner on 10 October 2002 for personal appearance before him on 11th October, 20002. On the oral request by the petitioner the said hearing was adjourned but the matter was posted on next working day i.e. on 16th October, 2002. Aggrieved by the assessing proceedings initiated by the respondent, the petitioner submitted a writ petition before the Rajasthan High Court which was registered as S.B. Civil Writ Petition No. 7270 of 2002 Badri Narayan Modi vs. Union of India. After hearing the petitioner this Court passed the following order on the stay application on 18.10.2002: It is contended that the settlement application under section 245C(1) of the Income Tax Act, 1961 has been filed before the Settlement Commissioner, Principal Bench, New Delhi. Issue notice to respondents, returnable within four weeks. Notice of stay petition be also issued. Meanwhile the respondents are restrained from making enquiry/investigation and the assessment until admission or rejection of the Settlement Application by the Settlement Commission, Principal Bench, New Delhi.
(2.) On 7.2.2003, the petitioner filed this criminal misc. petition with the prayer mentioned above. The learned counsel for the petitioner has drawn attention of this court on the cognizance order passed by the court below dated 22.11.2002 for the offence under section 277 of the Income Tax Act. He has further prayed to this court that the petitioner filed an application under Section 245C of the Income Tax for settlement of his case before the Income Tax Settlement Commission Principal Bench, New Delhi and this fact he has informed to this court that the Settlement Commission of the Income Tax Department has settled the matter, but he does not have the order of the said court. Hence this petition should be allowed.
(3.) On the other hand, Mr. Amar Singh, learned counsel appearing for the Income Tax Department has preliminary objection regarding maintainability of the petition filed by the petitioner under section 482 Cr.P.C. According to him the petitioner has directly approached this court under section 482 Cr.P.C. while there is an alternative remedy available to the petitioner to file a revision petition. He has placed reliance on the judgment of this court in Vipin Gupta and anr. vs. State of Raj. and another S.B. Criminal Misc. Petition No. 813 of 2006 decided on 4.3.2009. He has further drawn attention of this court towards section 277 of the Income Tax Act, which is reproduced hereunder: Section 277. FALSE STATEMENT IN VERIFICATION, ETC. If a person makes a statement in any verification under this Act or under any rule made thereunder, or delivers an account or statement which is false, and which he either knows or believes to be false, or does not believe to be true, he shall be punishable,-(i) In a case where the amount of tax, which would have been evaded if the statement or account had been accepted as true, exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine; (ii) In any other case, with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and with fine.;