( 1 ) THIS petition under Section 482 Cr. P. C. and Article 227 of the Constitution of India, has been moved in the following circumstances :-

( 2 ) A complaint at present stands filed against the petitioners in the court of Mr, Bharat Bhushan Gupta, Additional Chief Metropolitan Magistrate, Delhi under Section 277 and 278 of the Income tax Act, and Sections 193 and 196 Indian Penal Code. The allegation? are that these petitioners had filed false returns of their incomes for the assessment year 1962-63, and had concealed considerable income which otherwise belonged to them. The petitioners contention in the present petition before this Court is that the complaint cannot proceed as the assessment for this year has already been quashed, and the Income-Tax Officer has still to make a fresh assessment. It is urged that it can only be known after the completion of fresh assessment whether any concealment or falsification has, in fact, been enacted by the petitioners, and therefore, they should be prosecuted for the offences for which they are now being proceeded against.

( 3 ) TWO returns were filed for assessment year 1962-63. One was by W. L. Kohli in his status as individual, and the other was by a firm known as W. L. Kohli and Co , of which W. L. Kohli and his son, the other petitioner, claim to be partners. The Income-tax Officer, however, came to the conclusion that the firm was fictitious, and that the income attributed to the same in reality belonged to W. L. Kohli. The incomes shown in the two returns were clubbed together in the individual assessment of W. L. Kohli, and various other additions were as well made. This assessment of the Income-tax Officer was upheld right upto the Income tax Appellate Tribunal. Fortified by these circumstances, the Income-tax Officer filed the complaint against the present two petitioners which is at present pending.

( 4 ) WHAT transpired in the ultimate setting aside of the assessment of this year was that earlier for assessment year 1960-61 and 1961-62, W. L. Kohli and the said firm had filed separate returns. During the course of assessments the question of genuineness of the firm came up for consideration. The Income-tax Officer negatived that and was of the opinion that the son of W. L. Kohli had no capital base with which he could claim to invest any amount in the partnership, and as such his induction in was a sort of camou-flage enacted. He was of the opinion that both the incomes belonged to W. L. Kohli individually. These assessment were made on 30-3-1964 and 30-3-1966 respectively. However, in appeals the Appellate Assistant Commissioner set aside those assessments by two different orders made in April, 1968 and April, 1969 and required the Income-tax Officer to do them de novo. When the matters went back before the Income-tax Officer he accepted the genuineness of the firm. In this regard, he agreed with W. L. Kohli that he had made certain gifts in favour of his son on which he had already paid gift tax, and as such they provided enough capital with him to invest the same in the partnership. These fresh assessments for the years 1960-61 and 1961-62 were made on 4-6-1969.

( 5 ) AGAINST these assessments the Income-tax Commissioner interfered under Section 263 of the Income-tax Act observing that the orders were erroneous and prejudicial to the interest of revenue. The Income-tax Officer was required to make fresh assessment in the light of the observations made by him in his order dated 7-8-1981. Against this order of the Income-tax Commissioner, the assessees moved the Income-tax Tribunal which reversed the order of the Commissioner on 29-10-1982. Thereby the fresh- assessments made by the Income-tax Officer for these years were restored. The Income-tax department sought a reference under Section 256 (1) of the Act against the same which was rejected by the Tribunal on 17-3-1984. At present apetition requiring the Income-tax Appellate Tribunal to make referen