A complaint under Sections 193, 463 and 477 read with Section 109 of the Indian Penal Code could not be filed by a third person at the instance of the Income-tax Commissioner, and such proceedings were liable to be quashed.

S.D.Bajaj, J.

1. A partnership concern working under the name and style of Basal Tools Company, Factory Area, Patiala, submitted its income-tax return for the assessment year 1968-69, completed on 31st August, 1967, to the concerned income-tax authorities on June 29, 1968. At the relevant time, the partnership concern had two partners, named, Shanti Lal Kapur and Subhash Kapur. The return was filed on behalf of the partnership concern by Shri Shanti Lal Kapur, its senior partner in age.

2. The income disclosed in the aforesaid return was Rs. 85,760. In the assessment order dated October 30, 1971, the income was raised to Rs. 2,64,680. In appeal, the income was reduced to Rs. 1,03,512. After reopening of the assessment proceedings, the assessee filed a revised return through Shri Suresh Kapur--its added partner ; added after the assessment year 1968-69 of the return. On September 30, 1980, the income was assessed at Rs. 1,99,990. Penalty of Rs. 45,593 imposed on February 24, 1983, was waived by the Commissioner of Income-tax (Appeals), Chandigarh, on July 31, 1984.

3. Alleging that the partnership concern and its three partners had fabricated false evidence by furnishing inaccurate particulars of the income earned by the partnership concern up to August 31, 1967, in the return for the assessment year 1968-69 and then supported it with falsely prepared accounts, Shri D.C. Roy, Income-tax Officer, Patiala, filed against them four criminal complaints, annexure P. 4, in the court of the learned Chief Judicial Magistrate, Patiala, for their prosecution under Sections 276C and 277 read with Section 278 of the Income-tax Act and under Sections 193, 463 and 477 read with Section 109 of the Indian Penal Code.

4. All the four persons arrayed as accused in the complaints, annexure P. 4, have filed Criminal Miscellaneous No. 4394-M of 1987 for quashing the complaints, annexure P. 4, and all subsequent proceedings thereon on the ground that Subhash Kapur and Suresh Kapur have nothing to do therewith and that the partnership concern as also Shanti Lal Kapur, if at all, can both be proceeded against under Section 277 of the Income-tax Act therein.

5. I have heard Shri Balwant Singh Gupta, senior advocate, assisted by Shri Sanjay Bansal, advocate, for the petitioners, Shri Ashok Bhan, senior advocate, assisted by Shri A.K. Mittal, advocate, for the respondent, and have carefully gone-through the record of proceedings.

6. In respect of the return similarly filed by the petitioner concern for the assessment year 1967-68, it was held by this court inter partes on almost identical facts in Basal Tool Co. V/s. ITO [1987] 167 ITR 24 (at p. 26) :

"Now coming to the revised return filed on June 7,177, by Suresh Kapoor, petitioner No. 4, it is to be noticed that the Income-tax Officer did impose a penalty under Section 271(1)(c) of the Act on the ground that particulars of the income to a certain extent had been concealed and inaccurately furnished. However, this order was set aside in appeal (annexure P-3) as the Commissioner of Income-tax found that the facts did not justify the imposition of penalty. In other words, it was held that in the revised return neither any income had been concealed nor inaccurate particulars of such income had been furnished. In such circumstances, in view of the finding of the Income-tax Commissioner, there was no concealment of income and no furnishing of inaccurate particulars in the revised return which may have attracted the provisions of Section 276C or 277 of the Act. It cannot be said that in the revised return any wilful attempt had been made to evade tax or that a false return had been filed by petitioner No. 4 on behalf of the firm. In view of what is stated above, the prosecution of petitioners Nos. 3 and 4, namely, Subhash Kapoor and Suresh Kapoor, is misconceived and is tantamount to abuse of the process of law. Consequently, this petition is partly allowed and the complaint (annexure P-4) and the pro