bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRI. CRI. CRI. APPLICATION NO. 2291 OF 2007 APPLICATION NO. 2291 OF 2007 APPLICATION NO. 2291 OF 2007 M/s.J.M.baxi & Co. and anr. ... Applicants v/s Shri Manoj Joshi & anr. ... Respondents Mr.N.K.Thakare i/by Prakash Naik for the applicants. Mr.A.D.Kanga and Ms.Poonam Bhosale for the Resp.No.1. Mr.P.A.Pol, A.P.P. for the State. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 26TH JUNE, 2008 26TH JUNE, 2008 26TH JUNE, 2008 P.C. P.C. P.C.: 1. This petition challenges the order passed by the Additional Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai, on 15.6.2007. By this order the learned Magistrate has directed that charges be framed against the accused i.e. the petitioners herein, for offences punishable under Sections 276B, 277, 278 and 278B of the Income Tax Act. 2. The main contention raised on behalf of the petitioners is that the penalty in respect of failure to pay tax has been waived and in these circumstances the prosecution launched against the petitioners under 2 Sections 277 must be quashed. It is submitted that once the department has accepted that no penalty is payable, there is no reason why the prosecution should continue on the same set of facts. Reliance is placed on the judgment of the Supreme Court in the case of K.C.Builders K.C.Builders K.C.Builders & anr. v/s Assistant Commissioner of & anr. v/s Assistant Commissioner of & anr. v/s Assistant Commissioner of Income Income Income Tax, reported in (2004) 2 SCC 731 Tax, reported in (2004) 2 SCC 731 Tax, reported in (2004) 2 SCC 731 and in the case of Dilip N. Shroff v/s Joint Commissioner of Income Dilip N. Shroff v/s Joint Commissioner of Income Dilip N. Shroff v/s Joint Commissioner of Income Tax, Tax, Tax, Mumbai & anr., reported in (2007) 6 SCC 329. Mumbai & anr., reported in (2007) 6 SCC 329. Mumbai & anr., reported in (2007) 6 SCC 329. 3. The Supreme Court in the case of K.C.Builders & K.C.Builders & K.C.Builders & anr. anr. anr., has held that the law is settled that levy of penalty under Section 271(1)(c) and prosecution under Section 276-C are simultaneous and, therefore, once the penalty is cancelled on the ground that there is no concealment, the quashing of the prosecution is automatic. In the case of Dilip N Dilip N Dilip N. Shroff Shroff Shroff, the Supreme Court considered that the concealment of income and furnishing of inaccurate particulars are different concept. The Supreme Court was of the view that the averments to be taken into consideration while deciding whether the penalty should be imposed are different from the factors to be viewed in the case of a prosecution. 4. The learned advocate for the respondent Nos.1 and 2 draws my attention to the judgment of the Supreme Court 3 in the case of Union of India v/s Banwari Lal Agarwal, Union of India v/s Banwari Lal Agarwal, Union of India v/s Banwari Lal Agarwal, reported reported reported in 238 ITR 461. in 238 ITR 461. in 238 ITR 461. In this case, the Supreme Court has observed that the High Court was in error in quashing the proceedings under Section 482 in respect of a prosecution launched against the assessee who had filed his returns much after the date of search and attempted to evade tax chargeable or imposable under the Act. 5. In my view, there is no need to entertain this application at this stage when the charge has already been framed and the trial is in progress. 6. Criminal application rejected.