GUMAN MAL LODHA, J. - (1.) THIS is a criminal miscellaneous petition under Section 482 Cr. PC for quashing the proceedings pending in the Court of Chief Judicial Magistrate (Economic Offences), Jaipur in Criminal Complaint No. 53 of 1913.
(2.) THE brief facts giving rise to this case are that the complainant Income Tax Officer 'B' Ward, Beawar under the directions of the Commissioner of Income Tax Jaipur, alleged to have been obtained on 21st March, 1983, submitted a complaint in the Court of Chief Judicial Magistrate (Economic Offences) Jaipur alleging that the petitioner No. 1 firm, which is having its office in Bijaynagar, district Ajmer was being regularly assessed with Income Tax Officer, Beawar. The return for the assessment year 1978 -79 alleged to have been submitted on 20th November, 1979 before the Income Tax Officer, 'A' Ward, Beawar in the status of registered firm declaring total income of Rs. 64,572/ -. It was alleged that since declaration in form No. 12 under Sections 184(7) of the Income tax Act was not available on the record, a duplicate signed by all the partners was alleged to have been submitted on 13 -3 -1980/81. It was further alleged that accused No. 1 produced the acknowledgement receipt No. G -303462, dated 28th June, 1978 before the then Income Tax Officer, 'A' Ward, Beawar in support of having filed his form No. 12 earlier and the I.T.O. 'A' Ward satisfying himself made the following endorsement: Seen acknowledgement receipt No. 303462 (G -303462) dated 28 -6 -1978 produced today. Form No. 12 in the above case (by the Assessee A/R Shri F.S. Meratwal. and it is alleged that on the basis of this, the said I.T.O., 'A' Ward Shri S.K. Sharma allowed continuation of registration vide order dated 13th March, 1981 and completed the assessment under Section 143(1) of the Income Tax Act, 1961, on the return submitted by the party. It is further alleged that it came to the notice of I.T.O., 'B' Ward, Beawar Shri M. Compani that this acknowledgement receipt bearing the same number was produced in the name of M/s Kabra & Co. as evidence having filed form No. 12 for the assessment year 1978 -79 and in view of this development, it is alleged that the assesses was asked by the I.T.O., 'A' Ward to file the duplicate copy of form No. 12 and produce the proof of having filed the original in time. It is alleged that the duplicate copy was submitted along with the affidavit of Bhanwar Lal partner. However, accused No. 1 did not produce the original evidence, i.e. acknowledgment receipt No. G -303462 issued by the department. It was further alleged that verifications of the offices copy of the receipt revealed that the same was. actually issued to one Ram Krishan Shri Kishan and no acknowledgement receipt was issued in the name of firm accused No. 1. It was further alleged that in fact no declaration of continuation of registration in form No. 12 was ever submitted and a bogus duplicate of form No. 12 was placed on 13th March, 1980/81 and thus the benefit of continuation of registration in the status of the registered firm was obtained by fraud. It was further alleged that, accused No. 4 under capacity of a partner has submitted a duplicate copy along with affidavit to the then I.T.O., 'A' Ward, Beawar and thus caused circumstances to exist which had, the effect of enabling accused No. 1 and accused No. 4 to evade tax. Accused Nos. 2 to 5 were Incharge of and responsible to accused No. 1 for conduct of business of accused No. 1 during the assessment year 1978 -79 and they were also liable for offences under Section 276(c) of the Income Tax Act. It was alleged that the facts mentioned above constitute the offence punishable under Section 420 IPC read with Section 511, 471, 193, & 196, IPC read with Section 120B, IPC. This complaint was filed under the signatures of Shri G.C. Jain, I.T.O., 'B' Ward, Beawar and list of 8 documents was given in support of the complaint. The learned Chief Judicial Magistrate(Economic Offences), Jaipur took cognizance of the offence. Various allegations have been mentioned against the I.T.O. Shri S.K. Sharma, but I would not like to go into those allegations because I would treat those allegations as not proved. In order to avoid personal vindictiveness, whatever grievance the assessee could have against the I.T.O. concerned, let it not be treated by this judgment as proved because such wild and vague allegations against the Presiding Officer cannot be encouraged and should always be depreciated. However the fact remains that now the Income Tax Appellate Tribunal Jaipur Bench by its order dated 21st March, 1985 has given a clear finding, that the assessee had filed form No. 12 which was rightly taken into account by the I.T.O. while granting benefit of Clause III. The relevant finding reads as under: After referring to pages 37,39 and 41 as also page 63 and page 30 and 31, we are convinced that the assessee had filed form No. 12 which was rightly taken into account by the I.T.O. while granting benefit of continuation of registration Under Section 184(7). Pages 37 and 39 contain the letter of the assessee partner to the ITO as also his affidavit wherein he categorically states that he had filed form No. 12 personally and the receipt has been misplaced somewhere. Page 41 is the copy of Form No. 12 which was filed along with the letter dated 14th of November, 1981. Comparing this Form No. 12 as also what is purported to be a true copy of Form No. 12 at page 63 as certified by the ITO, it gives us to understand that the cutting and various mentions in page 63 is made by certain person who is other than the assessee himself. This is finding support from the letter of the assessee's counsel Mr. F.S. Meratwal dated 29 -8 -1981 in the case of Kabra & Co., where in he had stated that receipt No. G -303462 is being produced in the case of that assesses. Even reference to 68 which is the photocopy of acknowledgement receipt goes to support that the Form No. 12 which is at page 63 containing lot of corrections could not have been filed by the assessee. Referring to Page 73, which provides the constitution of the firm clearly indicates that the number of persons were only four in the year under review and were six in number till assessment year 1978 -79. The letter dated 10th of September, 1981 addressed to the assessee by the ITO also goes to indicate that form No. 12 filed originally by the assessee and was misplaced. In reply to this letter and the subsequent letter, the assessee had filed the letter dated 14th November, 1981 as also the affidavit where in the assessee had categorically pointed out that Form No. 12 was filed by him personally and not by his counsel F.S. Meratwal. It was wrong to say that the assessee has ever relied on Receipt No. G -303462. This is so in view of the various facts which have been examined by us. This clearly goes to establish that the Commissioner was wrong in his conclusion that the same acknowledgement receipt was used in the case of Shri Kishan as also an the case of Kabra & Co., since the case of Kabra and Company has been finalised by the ITAT vide their order at pages 58 to 62, where in it has been held that Receipt No. G -303462 is used by M/s Kabra & Company in support of they having filed Form No. 12. Therefore, on facts, the learned Commissioner's order need to be quashed. Since facts, we have quashed the order of the CIT, we do not find it necessary to go into the various other questions raised by the assessee about the legality of the Commissioner's order for setting aside the order Under Section 143(1) especially for re -examination of granting of registration when there is no mention in the order about granting of registration. Mr. Mehta has also submitted a copy of the order of the Commissioner dated 14th/15th May, 1985 which show that the finding of the Appellate Tribunal has been accepted by the Revenue and they are not going to challenge it any further. In view of this it has became final.
(3.) MR . Surolia is justified in arguing that it cannot be a universal rule that if the Tribunal takes a different view, the jurisdiction of the Criminal Court to investigate facts alleged is ousted, need not be decided. In a given case this may happen and therefore as a proposition of law. I am inclined to accept the contention of Mr. Surolia. However, it ail depends upon each case and facts and circumstances of it.;