- (1.) THROUGH this application inherent power of this Court has been invoked for quashing the entire criminal proceeding of C.O. case no.29 of 2005, pending in the court of Special Judge, Economic Offences, Dhanbad including the order dated 26.2.2005 whereunder cognizance of the offence under section 278 of the Income Tax Act has been taken against the petitioner.
(2.) LEARNED counsel appearing for the petitioner submits that it is the case of the prosecution as has been disclosed in the complaint lodged by Income Tax Officer is that one Mr.Suresh Singh, an assessee under the Income Tax Act filed her income tax return for the financial year 2002 -03 along with TDS certificate and other document whereby refund of Rs.35,500/ -was claimed. Further case is that on verification and enquiry from the senior Accounts Officer, Baramuri, OCP, Mugma Area, M/s. E.C.L, Chirkunda, it was found that the said TDS certificate submitted by the assessee was not genuine and had not been issued by the employer to the assessee. Thereupon, a show cause notice was issued to Suresh Singh, who on getting the said notice, did reply that he had handed over the return duly signed by him to this petitioner who submitted documents along with the said return giving informations relating to his income chargeable to tax which were fabricated and on that allegation, prosecution has been launched not against the said Mr.Suresh Singh but also against this petitioner wherein petitioner was alleged to have abetted and induced the assessee to deliver the account which both of them were knowing to be fabricated and as such, the petitioner has been alleged to have committed offence under section 278 of the Income Tax Act, 1961.
(3.) LEARNED counsel appearing for the petitioner submitted that accepting the entire allegations made in the complaint to be true, the petitioner can never be said to have committed offence under section 278 of the Income Tax Act, as the petitioner has not been alleged to have induced or abetted the assessee to file false return, rather return as per the version of the assessee was handed over to this petitioner voluntarily for its filing before the competent authority and as such, mere filing of the return would not attract any criminal liability so far this petitioner is concerned. 1984 (2) Crimes 345] and also in a case of Navarathna and Co. vs. State (Income Tax Officer, Central Circle, Madras [(1987) 168 ITR 788 (Mad)]. Thus, it was submitted that the entire proceeding is fit to be quashed. As against that, learned counsel for the opposite party no.2 submitted that facts, which led the complainant to file a complaint, do constitute offence under section 278 of the Income Tax Act and hence, the court below is absolutely justified in taking cognizance of the offence.;