V.K.SINGHAL,J. - (1.) BY this petition under s. 482 CrPC the proceedings before the Special Judicial Magistrate (Economic Offences) in Criminal Case No. 264/95 have been prayed to be quashed. An application under s. 245(2) of the CrPC was moved by the petitioners for discharging them of the alleged offences under ss. 276C and 277 of the IT Act, 1961, r/w s. 197 and 120B of the IPC.
(2.) A complaint was filed by the ITO ward II, Alwar, in respect of asst. yr. 1982 -83 on the ground of concealment of income by declaring the income of Rs. 15,195 in the return submitted on 30th July, 1982, whereas the additions were made of Rs. 33,000 by the ITO on 30th August, 1983. The additions were reduced to Rs. 16,000 by order dt. 27th April, 1985 by the appellate authority. The petitioner thereafter filed a revised return on 21st January, 1986, and surrendered this amount of Rs. 16,000. The penalty of Rs. 5,632 was levied under s. 271(1)(c) of the IT Act, 1961, by order dt. 21st March, 1986. The said penalty has been quashed by the appellate authority on 25th July, 1986, and in appeal preferred by the Department to the Tribunal, the penalty was sustained vide order dt. 30th October, 1987. The petitioner moved an application for rectification which was accepted on 28th July, 1993, and the penalty was quashed. It is stated that the reference application moved by the Department was rejected by the Tribunal on 14th December, 1993, and the application under s. 256(2) have not been moved before this Court. The complaint is stated to be contrary to various circulars issued by the CBDT and it is stated that in accordance with Circular No. 432 dt. 15th November, 1985 [published at (1986) 50 CTR (TLT) 1] the sympathetic view was to be taken against those persons who surrendered their income by 31st March, 1986, and the Tribunal having taken into consideration that Circular, set -aside the penalty in the rectification proceedings.
(3.) THE submission of the learned counsel for the petitioner is that since the penalty itself has been quashed, the magistrate should not have taken the cognizance nor should have proceeded further in the matter and the application which was moved under s. 245(2) CrPC have wrongly been rejected.;