Mere expectation of success in reassessment proceedings cannot come in the way of the institution of criminal proceedings. The criminal court has to judge the case independently on the evidence placed before it.

V.S.Aggarwal, J.

1. This is a revision petition filed by M/s. Karma Trading Company (hereinafter described as the petitioner) directed against the order dated 22.11.1994 passed by the Chief Judicial Magistrate, Ferozepur. By virtue of the impugned order, the learned trial court framed charges against the petitioner with respect to offences punishable under section 276-C, 277 read with Section 278-B of the Income Tax Act.

2. Petitioner No. 1 is a registered firm and petitioners No. 2 and 3 are its partners. Petitioner firm filed its return of income tax declaring an income of Rs. 1,28,050/- in August, 1986. During the course of assessment proceedings, Income Tax Officer made an addition of Rs. 1,75,000/- vide order dated 30.12.1987. Penalty proceedings were also started under section 271(i)(c) of the Income Tax Act. As against the said order, petitioner preferred an appeal to the Commissioner of Income Tax (Appeals), Chandigarh, which was dismissed on 7.3.1988. After dismissal of the appeal, a criminal complaint was filed against the petitioners under section 276(c) and 277 read with section 278-B of the Income Tax Act, before the Chief Judicial Magistrate, Ferozepur. Petitioners challenged the assessment made by the Income Tax Officer by filing an appeal before the Income Tax Appellate Tribunal. Second appeal of the petitioners was accepted and matter was remanded to the Income Tax Officer.

3. It is alleged that since the appeal filed by the petitioner has been accepted by the Appellate Tribunal, therefore, the criminal proceedings namely which are pending in the Court of Chief Judicial Magistrate, Ferozepur should be quashed.

4. Reliance strongly is being placed by the petitioners on a decision from the Kerala High Court in the case of Dr. B. Seerapani v. Income Tax Officer and another, 1993 (Vol. 203) Income Tax Reports, 288 (Ker). In the cited case, the question under consideration was identical and the case was remitted by the Income Tax Appellate Tribunal. The Kerala High Court felt that the very basis of prosecution having been taken away, the complaints are liable to be quashed. The relevant extract of the order passed by the Kerala High Court reads as under :

"The petitioner contends that, in view of the setting aside of the assessment by the Tribunal, the very basis of the prosecution having been taken away annexure I complaint in the respective Criminal M.Cs. are liable to be quashed. Learned counsel for the petitioner relied on the decision of this Court in Criminal M.C. No. 1047 of 1991 and Criminal M.C. No. 1091 of 1992 (Madras Spinners Ltd. v. Dy CIT, 1993 (203) ITR 282 (Ker), in support of the said argument. In both the cases, in similar circumstances, upon the setting side of the order of the appellate authority by the Tribunal, the complaints filed against the assessee on the basis of the assessment were quashed without prejudice to the right of the Revenue to file fresh complaints. But learned counsel for the respondent contended, in view of the Tribunals order that it may not be necessary to quash the complaints, instead a direction need be issued to keep the complaint in abeyance till the reassessment is over and to revive the same if the result of the reassessment is in favour of the Revenue. The two orders of this Court favoured the quashing of the complaint without prejudice to the Revenue to file a fresh complaint, if so advised, in the light of the reassessment proceedings against the petitioners."

5. Learned counsel appearing on behalf of the respondent, however, strongly relied upon the judgment of the Supreme Court in the case of P. Jayappan v. S.K. Perumal, First Income Tax Officer, Tuticorin, 1984 (Vol. 149) Income Tax Reports 696. One of the arguments advanced before the Supreme Court was that the assessment proceedings started against the petitioner in that case were not completed and, therefore, prosecution was premature on the ground that reassessment proceedings were going on. The Sup