IMPORTANT POINT
The criminal proceeding is liable to be quashed under-sections 401 Procedure Code when the very foundation of the complaint is removed.

JUDGMENT

K. N. Saikia, J. - In this criminal revision under sections 401 and 482, Criminal Procedure Code the petitioner prays for setting aside the order dated 18-7-79 of the Judicial Magistrate, Gauhati in Case No. 309C/73 rejecting his prayer for stay of the proceeding pending assessment made by the Income Tax Officer.

2. The Income Tax Officer, B-Ward, Gauhati, instituted the above complaint case under section 277 of the Income Tax Act read with sections 177, 193 and 196 of the Indian Penal Code on the allegation, inter alia, that the petitioner willingly and deliberately concealed his actual income earned as medical fees from various Central Government employees and from private practice to evade tax.

3. In the complaint case the petitioner appeared before the Court and pleaded not guilty. It is stated in this petition that against the relevant assessment of 1970-71 made by the Income Tax Officer, B-Ward, Gauhati, the petitioner preferred an appeal before the Appellate Assistant Commissioner of Income Tax, Gauhati Range-1 who by his order dated 21-11-74 partly allowed the appeal giving some relief to the petitioner, and on further appeal the Income Tax Appellate Tribunal by its order dated 5-5-77 has allowed the appeal and has set aside the assessment order holding that the assesses is entitled to an opportunity before an assessment could be made, that the information gathered by the Income Tax officer was not tendered to the assesses for verification, and that the assesses had denied that he had received the fees from the postal employees, and therefore the assesses was entitled to an opportunity to substantiate his case. The Tribunal has sent down the matter to the Income Tax Officer for making fresh assessment after giving opportunity to the assesses.

4. The Inspecting Assistant Commissioner of Income Tax, Gauhati Range has since informed the petitioner by his letter dated 1-3-78 that the penalty proceedings under section, 277(i)(c) of the Income Tax Act in respect of that assessment has also been dropped. Thereafter the petitioner filed a petition before the Judicial Magistrate praying that he be discharged in the said criminal case No. 309C/73; but his prayer was rejected. His revision there from was also rejected by this Court. The petitioner thereafter filed another application before the learned Magistrate who by his order dated 18-7-79 rejected that application also. Hence this petition.

5. Mr. D. N. Barua, learned counsel for the petitioner, submits that the assessment having been set aside there will be abuse of the processing of the Court if the complaint case is allowed to continue until reassessment is made. Mr. G. K. Talukdar for the complainant submits that the offence having been committed by the assesses, the complaint case must proceed.

6. Section 277 of the Income Tax Act, 1961, deals with false statement in declaration and provides that if a person makes a statement in any verification under that Act or under any rule made there under, or delivers an account or statement which is false, and which he either knows or believes to be false, or does not believe to be true, he shall be punishable as prescribed under that section.

7. Section 279 of the Income Tax Act provides that prosecution has to be at the instance of Commissioner. Sub-section (1A) of section 279 provides that a person shall not be proceeded against for an offence under section 277 in relation to the assessment for an and 482 Criminal assessment year in respect of which the penalty imposable upon him under clause (iii) of sub section (1) of section 271 has been reduced or waived by an order under section 273A.

8. Section 271 deals with penalty for failure to furnish the returns of total income under sub-section (1) of section 139.

9. On perusal of this petition and the complaint petition it is clear that it is a case of submission of false returns, and not false documents and under the circumstances when the Income Tax authorities themse