The pendency of the reassessment proceedings under the Income-tax Act does not act as a bar to the institution of criminal prosecution for the offences punishable under section 276C or section 277 of the Income-tax Act, 1961.

1. - This is an application under section 482, Criminal Procedure Code, filed by the assessee who is being prosecuted for offences under sections 277 and 276C of the Income-tax Act. The gist of the offences is evasion of tax and making of false statement. Sections 276C and 277, Income-tax Act, 1961, read as under :

"276C. Wilful attempt to evade tax, etc.
- (1) If a person wilfully attempts in any manner whatsoever to evade any tax, penalty or interest chargeable or imposable under this Act, he shall, without prejudice to any penalty that may be imposable on him under any other provision of this Act, be punishable, -

(i) in a case where the amount sought to be evaded exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;

(ii) in any other case, with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and with fine.

(2) If a person wilfully attempts in any manner whatsoever to evade the payment of any tax, penalty or interest under this Act, he shall, without prejudice to any penalty that may be imposable on him under any other provision of this Act, be punishable with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and shall, in the discretion of the court, also be liable to fine.

Explanation. - For the purposes of this section, a wilful attempt to evade any tax, penalty or interest chargeable or imposable under this Act or the payment thereof shall include a case where any person -

(i) has in his possession or control any books of account or other documents (being books of account or other documents relevant to any proceeding under this Act) containing a false entry or statement; or

(ii) makes or causes to be made any false entry or statement in such books of account or other documents ; or

(iii) wilfully omits or causes to be omitted any relevant entry or statement in such books of account or other documents; or

(iv) causes any other circumstance to exist which will have the effect of enabling such person to evade any tax, penalty or interest chargeable or imposable under this Act or the payment thereof.

277. False statement in verification, etc.-If a person makes a statement in any verification under this Act or under any rule made thereunder, 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, be shall be punishable, -

(i) in a case where the amount of tax, which would have been evaded if the statement or account had been accepted as true, exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;

(ii) in any other case, with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and with fine."

2. The kingpin of the arguments of the learned counsel for the applicant is that all the omissions or commissions pointed out by the Income-tax authorities which are the bedrock of the prosecution, have been washed away by the appellate judgment of the Commissioner of Income-tax and now there is no existing omission or commission which could have been the base of either false statement or evasion of tax. In support of the above, the learned counsel has submitted a copy of the judgment of the Commissioner of Income-tax.

3. Shri Surinder Kumar Jain, the learned counsel for the applicant, has also relied upon the judgment of the Apex Court in Uttam Chand v. ITO (1982) 133 ITR 909 . The judgment of the Apex Court reads as under (at page 910):

"Heard counsel, special leave granted. In view of the finding recorded by the Income-tax Appellate Tribunal that it was clear on the appraisal of the entire material on the record that Shrimati Janak Rani was a partner of the assessee