BHARATHAN R Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) Petitioner was an abkari contractor. For the assessment year 1983-84 (accounting year 1982-83) he was conducting arrack shops and toddy shops in Kazhakkottam Excise Range in Trivandrum district. He filed return of income on 6-12-1983 before the Income Tax Officer, D Ward, Quilon offering an income of Rs. 4,64,845/-. A search under S.132 of the Income Tax Act, 1961, hereinafter referred to as 'the Act', was conducted at the arrack depot of the accused at Kazhakoottam and at the residence of the accused on 5-3-1985. In the course of search it is alleged that certain original books of accounts disclosing sale of arrack on different rates were found put. According to the income tax authorities the return of income filed by the petitioner on 6-12-1983 was in correct and it was filed by fabricating and manipulating false accounts. On this allegation a complaint, copy of which is marked in this case as Annexure-5, was filed before the Additional Chief Judicial Magistrate's Court (Economic Offences), Ernakulam, for offences u/Ss.276C(1) and 277(i) of the Act and S.193,1% and 415 IPC. That court registered the complaint as C.C.34/87 and has issued summons to the petitioner.

(2.) Petitioner seeks to quash the proceedings before the court below on two grounds: First ground is as follows: The petitioner filed return of income before the Income Tax Officer, D Ward, Quilon, on 6-12-1983. That officer passed the assessment order on 28-2-1986. So the offences u/Ss.193 and 196 IPC if at all committed by the petitioner was to the Court of the Income Tax Officer, D Ward, Quilon. Only that officer or superior officer to whom that officer was subordinate could have filed a complaint. The complaint, Annexure-5, was filed by the Income Tax Officer, B Ward, Trivandrum. That complaint is incompetent. The second ground urged is that the allegation regarding fabrication and manipulation of false accounts and other documents cannot stand in view of the decision of the Commissioner of Income Tax (Appeals) in the appeal filed by the petitioner and by virtue of the order passed by the Income Tax Appellate Tribunal, Cochin Bench, in IT. A. No.320/87.I shall proceed to deal with these grounds in detail.

(3.) Offences alleged against the petitioner are those u/Ss.276C(1) and 277(i) of the Act and Ss.193, 196 and 415 of the Penal Code. The petitioner filed return of income for the assessment year 1983-84 on 6-12-1983 before the Income Tax Officer, D Ward, Quilon. That officer passed a final order of assessment on 28-2-1986. So, it is contended that offences u/Ss.193 and 196 IPC, if at all committed must be taken to have been committed before the Income Tax Officer, D Ward, Quilon. S.136 of the Act provides that any proceeding before the income tax authorities shall be deemed to be a judicial proceeding for the purpose of S.196 IPC and that every income tax authority shall be a Civil Court for the purposes of S.195 of the Code of Criminal Procedure. So, if an offence under S.193 or 196 IPC has been committed in respect of a proceeding before the income tax authority, that authority alone can file a complaint under S.195 of the Code of Criminal Procedure. If that authority is not filing complaint then some other authority to which the first authority is subordinate can initiate proceedings. In the instant case the alleged false return of income was filed before the Income Tax Officer, D Ward, Quilon. So, offence under S.193 or 196 IPC can be taken to have been committed before that officer or court. Annexure-5 complaint was not filed by that officer. It was filed by the Income Tax Officer, B Ward, Trivandrum. The learned counsel representing the Revenue has no case that the Income Tax Officer, B Ward, Trivandrum, is a superior officer to the Income Tax Officer, D Ward, Quilon. In other words, the Income Tax Officer, B Ward , Quilon, is not subordinate to the Income Tax Officer, B Ward, Trivandrum. Therefore, the complainant is incompetent to file the complaint for prosecuting the petitioner for offences u/ss. 193 and 196 IPC. This view is supported by the decision in Income Tax Officer, Special Circle v. Kerala Oil Mills ( 1986 KLT 947 ).