Dismissed

M/S Indo German Elect.Ltd and v. State and Ans

Rajasthan HC11 Nov 2014CRLMP/551/2003

Case brief

AI extract

What is this about?

In a criminal miscellaneous petition under Section 482 CrPC challenging orders framing charges based on an IT penalty later set aside, the court dismissed the petition noting it was a second revision. The court held that the penalty was cancelled due to nil income, not conclusive proof of no concealment, implying prosecution could still be valid.

What did the court decide?

Petition under Section 482 CrPC dismissed on merits and ground of second revision; record sent back.

M/S Indo German Elect.Ltd and Vs State and Ans — Rajasthan HC (2014) — LawSathi Research

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S.B. CRIMINAL MISC. PETITION NO.551/2003 M/s. Indo Jarman Electricals Ltd., Jaipur & Ors. Vs. State of Rajasthan & Anr.

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

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S.B. CRIMINAL MISC. PETITION NO.551/2003

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M/s. Indo Jarman Electricals Ltd., Jaipur & Ors.

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Vs.

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State of Rajasthan & Anr.

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Date of Order : 11^th November, 2014

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HON'BLE MR. JUSTICE M.N.BHANDARI

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Mr.Mahesh Gupta, for the petitioner/s. Mr.Sudesh Saini, Public Prosecutor. Mr.Anuroop Singhi ] Mr.O.P.Pareek ] Mr.Kushagra Sharma ] Mr.Saurabh Jain ], for the respondent No.2.

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By the Court:

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By this criminal misc. petition filed under Section 482

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of Cr.P.C., a challenge is made to the order dated 21^st May, 1999

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passed by Judicial Magistrate (Economic Offences Cases) in case No.168/97 and the order dated 07^th March, 2003 passed by the Additional Sessions Judge (Essential Commodities Act), Jaipur on a revision petition.

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A prayer is further made to drop the proceedings as no case is made out against the petitioner/s - assessee/s.

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Learned counsel for the petitioner/s submits that impugned orders have been passed in ignorance of the fact that

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S.B. CRIMINAL MISC. PETITION NO.551/2003 M/s. Indo Jarman Electricals Ltd., Jaipur & Ors. Vs. State of Rajasthan & Anr.

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penalty imposed by the Income Tax Officer was set aside by the Income Tax Tribunal on an appeal by the petitioner/s – assessee. After cancellation of the penalty, case for concealment of income is not made out. With the cancellation of penalty, the prosecution and charge should also go, however, it was ignored by both the Courts below.

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Learned counsel for the respondent/s, on the other hand, submit that cancellation of penalty by the Tribunal does not affect the prosecution. The cancellation of penalty is not on merit

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but keeping in mind that no taxable income exists due to be accumulated loss of the assessee. In the background aforesaid and even if the penalty was set aside, the prosecution was maintainable. The aforesaid aspect was considered by the Revision Court, thus no interference may be made in the impugned orders for framing of the charges.

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I have considered the submissions made by learned counsel for both the parties and perused the record.

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The charges against the petitioner/s were framed followed by challenge by a revision petition. The revision petition was dismissed by the Courts below and now, the petition under Section 482 of Cr.P.C. is nothing but literally a second revision

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S.B. CRIMINAL MISC. PETITION NO.551/2003 M/s. Indo Jarman Electricals Ltd., Jaipur & Ors. Vs. State of Rajasthan & Anr.

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petition, which is not maintainable. The petition could have been dismissed on the aforesaid ground itself, however, I am going into the merit of the case also.

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The charges framed against the petitioners have been challenged mainly on the ground that penalty imposed by the Income Tax Officer for relevant assessment year has been set aside by the Income Tax Tribunal. It is in ignorance of the fact that cancellation of penalty is not for the reason that there was no concealment of income in the hands of the petitioner/s. It was precisely on account of accumulated loss and thereby, income comes to be “Nil” for the relevant assessment year. The penalty was not found to be justified in those circumstances but merely for that reason, framing of the charges for offence cannot be held to be illegal. The distinction has to be made regarding justification of the penalty and for prosecution of the assessee alleging concealment of the income. The concealment attracts penalty and prosecution both and it may attract either of in the given case. If the penalty is not found justified holding no concealment, in that case, the assessee cannot be prosecuted but case in hand is not of such a nature. The penalty was set aside as even after adding the income, tax was found to be “Nil”.

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S.B. CRIMINAL MISC. PETITION NO.551/2003 M/s. Indo Jarman Electricals Ltd., Jaipur & Ors. Vs. State of Rajasthan & Anr.

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In view of the above and looking to the fact that

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after dismissal of revision petition, a petition under Section 482 of Cr.P.C. is nothing but a second revision petition, it is dismissed on both the grounds.

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Record be sent back immediately.

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Preeti, P.A.

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All cor r ect ion s m ad e in t h e j u d gm en t / or d er h ave been in cor por at ed in t h e j u dgm en t / or der bein g em ailed.

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Pr eet i Asopa P.A.

M/S Indo German Elect.Ltd and v. State and Ans

Case brief

What is this about?

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M/S Indo German Elect.Ltd and v. State and Ans

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