Penal section and prosecution both can be initiated simultaneously against tax evaders.

This revision has been preferred against the order passed in Crl.R.C.No.136/1993 on the file of the II Additional Sessions Judge, Coimbatore, against the order in Crl.M.P.No.2597 of 1992 in C.C.No.127 of 1991 on the file of the Chief Judicial Magistrate, Coimbatore. The accused in C.C.No.127 of 1991 on the file of the Chief Judicial Magistrate, Coimbatore, have filed Crl.M.P.No.2597 of 1992 under section 245 of Cr.P.C., for discharge of them from the offence alleged against them in C.C.No.127 of 1991. The learned trial judge, after going through the affidavit to the petition and also the counter filed by the respondent, has dismissed the petition. Aggrieved by the findings of the learned trial judge, the accused have preferred a criminal revision petition No.136/1993 before the II Additional Sessions Judge, Coimbatore. The learned Sessions judge, after giving due deliberations to the submissions made by the learned counsel on both sides and after going through the oral and documentary evidence let in before the trial Court, has allowed the revision thereby setting aside the order passed in Crl.M.P.No.2597 of 1992 in C.C.No.127 of 1991, resulting discharge of the accused from the criminal liability alleged against them, which necessitated the revision before this Court.

2. The only point to be decided in this revision is whether there is any prima facie case against the accused to proceed with the trial in C.C.No.127 of 1991?

3. The Point:-

3(a) The complaint was preferred by Rang No.II, Income Tax Commissioner, Coimbatore Division, against the accused under Section 226 (C) and 227 of the Income Tax Act and also under Section 193 and 196 of the IPC. The learned Sessions Judge has discharged the accused on two grounds. The learned Sessions Judge would state that the Income Tax Department has levied penalty for an offence contemplated under Section 297(C)(1) of the Income Tax Act for concealment of income by the accused. The learned Sessions Judge relied on the provision contemplated under Section 276(A)

(i) of the Income Tax Act to the effect that if a penalty levied by the department is waived or reduced then he cannot be prosecuted. The power of waivering or reducing the penalty has been given to Commissioner of Income Tax under Section 273(A) of the Income Tax Act. The learned Special Public Prosecutor for Income Tax Cases Thiru.K.Ramsamy would focus the attention of this Court to Section 273(A) of the Income Tax Act and would contend that chapter 21 of the Income Tax deals with penal section and chapter 22 of the Income Tax Act deals with prosecution and both can simultaneously be initiated against an income tax evader. The learned Special Public Prosecutor would contend that the reasoning of the learned Sessions judge that since penalty has been imposed on the accused he cannot be prosecuted cannot be a sound reasoning. In support of this contention the learned Special Public Prosecutor would rely on 149 ITR 696 (P. Jayappan Vs. S.K. Perumal), wherein it has been held by the Honourable Apex Court that section 279(1A) does not provide that the mere fact that there is a possibility of the Commissioner passing an order waiving or reducing the penalty imposed or imposable on the accused under Section 271(1)(c), prosecution for an offence under Section 276(C) or 277 shall not be instituted. For the same proposition of law the learned Special Public Prosecutor would rely on 206 ITR 222 (Universal Supply Corporation and others Vs. State of Rajasthan and another), wherein also it has been held by the Rajasthan High Court - Jaipur Bench as follows:-

"We do not, however, agree with the view expressed by the High Court of Calcutta in Jyoti Prakash Miter Vs. Haramohan Chowdhury (1978) 112 ITR 384. In that case on a complaint made against the assessee for an offence punishable under Section 277 of the Act, the Chief Metropolitan Magistrate issued process. Thereupon the assessee questioned the validity of the initiation of th