1 WP 579.99.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL WRIT PETITION NO. 579 OF 1999 ALONGWITH CRIMINAL WRIT PETITION NO. 580 OF 1999 Mr. Bhupen Champaklal Dalal. ... Petitioner. V/s. Mr. Sandeep Kapoor & Anr. .. Respondents. ALONGWITH CRIMINAL WRIT PETITION NO. 581 OF 1999 ALONGWITH CRIMINAL WRIT PETITION NO. 582 OF 1999 CIFCO Ltd. & Anr. ... Petitioners. V/s. Mr. S.P. Panwar & Anr. .. Respondents. ALONGWITH CRIMINAL WRIT PETITION NO. 583 OF 1999 ALONGWITH CRIMINAL WRIT PETITION NO. 584 OF 1999 ALONGWITH CRIMINAL WRIT PETITION NO. 585 OF 1999 ALONGWITH CRIMINAL WRIT PETITION NO. 586 OF 1999 ALONGWITH CRIMINAL WRIT PETITION NO. 587 OF 1999 ALONGWITH CRIMINAL WRIT PETITION NO. 588 OF 1999 Mr. Bhupen Champaklal Dalal. ... Petitioner. V/s. Mr. Sandeep Kapoor & Anr. .. Respondents. ALONGWITH 2 WP 579.99.sxw CRIMINAL WRIT PETITION NO. 589 OF 1999 CIFCO Ltd. & Anr. ... Petitioners. V/s. Mr. S.P. Panwar & Anr. .. Respondents. Mr. O.P. Soni i/b. M/s. O.P. Soni & Co. for the Petitioners. None for the Respondents. CORAM : K.U. CHANDIWAL, J. DATED : 17th OCTOBER 2011. P.C. :- Heard. In these Writ Petitions, the Petitioners challenge launching of Prosecution under Sections 276 (c) (i), 277, 270B of Income Tax Act 1961 on the ground of willful evasion of tax and making false statement on oath, in the capacity as Director of the Company and also by the Company. This Court, on 29th April 1999, has issued a Rule and interim order in terms of prayer clause (c) was granted with a clarification, in case the Appeals filed by the Petitioners are dismissed, the Criminal prosecution to proceed. Liberty was granted to the Respondents to move the Appellate Income Tax Authority to hear the Appeals as early as possible and expeditiously. This Court refused to grant stay as was prayed by the 3 WP 579.99.sxw Respondents, which was not disturbed even in the Hon’ble Supreme Court. 2. The cases are filed on the basis of order passed by the Assessing Authority indeed against which the Petitioners have preferred an Appeal before the Commissioner of Income Tax (Appeals) he has partly allowed the Appeal and has deleted various additions made by the Assessing Authority. This was also challenged by the Petitioner before the learned Commissioner of Income Tax (Appeals). Before the Income Tax Appellate Tribunal. At the time of Petitions it was informed appeals are pending for hearing before the Income Tax Appellate Tribunal. Since the Appeal before the Commissioner of Income Tax (Appeals) are pending, the Petitioner had urged to stay the Criminal cases inter-alia on the ground that said Appeal is pending before the said Authority for adjudication and on every grounds and more particularly in the said Petition. Since the learned Additional Chief Metropolitan Magistrate, Esplanade, Mumbai did not entertain the stay petition and on the contrary allowed evidence to be lead by order dated 18th April 1998, the order 4 WP 579.99.sxw of framing charge discharged or acquittal is stayed. Said order was carried in Criminal Revision Application before the learned Sessions Judge at Greater Bombay. The learned Sessions Judge refused to interfere with the order of the learned Chief Metropolitan Magistrate and consequently, these orders are questioned in the Writ Petition. 3. The Petitioner canvassed that both the Courts did not appreciate that the decision of Appellate Authority of Income Tax is irrelevant and if that decision in the appeal is in favour of the Petitioner, consequently, the complaint lodged by the Respondent No.1 could be liable to be quashed. 4. After substantially arguing the matter before this Court, a chart was presented by the learned Counsel for the Petitioner informing that Court Case No.21/S/1995, Tribunal has passed the order in favour of the Petitioner. In Court Case Nos.5/S/1996, 6/S/1996, 17/S/1996, 10/S/1995, 23/S/1995, 13/S/1996, 18/S/1995, 19/S/1995, 3/S/1996, the matters/appeals are pending with the Tribunal while Case No. 23/S/1995 is remanded by the Tribunal to the Assessing 5 WP 579.99.sxw Officer. This position illustrated in the chart is not controverted by the Department. The legal position in respect of prosecution is quite clear which has been considered by this Court while granting Rule and stay which has been confirmed by the Supreme Court. The Hon’ble Supreme Court in the matter of Commissioner of Income Tax, Mumbai v/s. Bhupen Champak Lal Dalal & Anr. In Special Leave Petition (Cri.) No. 2430 of 2000 by Judgment dated February 7, 2001 have observed in last paragraph as under :- “ In the present case, there is no claim of quashing of the proceedings. When ultimately the result to come out of the proceedings before the appellate authorities have a definite bearing on the cases alleged against the respondents, we find that the High Court is justified in granting the interim order it did and we do not think that such an interim order calls for interference at our hands. The learned Counsel on either side relied on several decisions but in the view we have taken it is unnecessary to refer to those decisions.” 7. In the light of this legal position and basically since the Appeals are pending before the Tribunal, there cannot be trial of the prosecution/criminal cases against the Petitioner. This is more so, the point of evasion of the tax or disproportionate tax is yet to be adjudicated upon. Therefore, the prosecution would amount to abuse of process of Court. Allowing such 6 WP 579.99.sxw proceedings to further accelerate would be causing harm to the Petitioner which could be avoided by exercise of powers vested in this Court. Considering this legal position, and as the re-assessment orders are challenged before the Income Tax (Appellate Tribunal), the Appeals are pending. During pendency of such Appeals, the prosecution naturally should not proceed in any manner. The observation of both the learned Court to allow to lead evidence is illusory and would definitely amount to wastage of Court’s precious time. 8. In the result, Rule made absolute concerning Writ Petition No.581 of 1999. For rest of the Writ Petitions i.e Writ Petition bearing Nos. 579 of 199, 580 of 1999, 582 of 1999, 583 of 1999, 584 of 1999, 585 of 1999, 586 of 1999, 587 of 1999, 588 of 1999, 589 of 1999, Rule partly allowed. The proceedings are stayed till decision of the respective Competent Authorities. (K.U. CHANDIWAL,J.)