prosecution under two laws
Querist :
Anonymous
(Querist) 25 May 2011
This query is : Resolved
Dear learned friends,
The salaried assessee being under the impression that the return for the AY 2007-08 not having been filed, filed the return again with another ITO.Both returns were not enclosed with proofs of deductions claimed in the returns.The AO without applying sec.143(i)of prima facie adjustments issued refunds in both cases. Later on in one return he received notice u/s.154 and later on 142(1) and 147. The addresses were provided by the ITOs for filing the returns to bring the returns in their own jurisdiction. It is the ITO who misguided the assessee that a refund would be given legally under his guidance. Feeling the complexity of the case, the assessee repaid both refunds. Thereafter, the ITO lodged a complaint under said provisions of IPC.The assessee is made A1, A person who helped him file the returns has been made A2 and A2's father a tax consultant for the last 40yrs with a clean background and no way linked to this case has been made A3.A3 is 75yrs old with a good reputation in the local social activities. The assessee doesn't even know A3. The concept of PAN was intentionally overlooked by the ITO before issuing the refund. Lest antecedents could easily be made out from the PAN, avoiding all these unnecessary complications.It's more that one full year and the police have not filed the charge sheet.Most of the allegations of cheating, fabrication of documents are false and with an ulterior motive to cause dis-reputation to A3.Since filing of the FIR A3 has not even been discharged from the offence. April 2010 till now,was time not enough either to file charge sheet/delete the innocent from the accused list. The said refunds and the intimations were handed over to the assessee/deposited into the assessee's bank account by the IT staff only. The addressee has given astatement that he knows neither A1 nor A2 and in place has mentioned an IT staff who has used his address. Certified copies of the statements recorded u/s.131 were applied for and the iTO refused the same with a statement that the JUDICIAL police investigation is going on and the originals need to be presented before the Hon'ble court when called for. If the police files charge sheet, truth would be revealed in the court and the Income tax dept's misappropriation would be revealed that the charge sheet is intentionally not filed. Now, after more than a year..the ITO for the same offence has filed a complaint u/s.277 & 278 of the IT Act directly to the Court with same grounds. The procedure of bail and unnecessary harassment would repeat. There were 21 of same cases where ITO had misguided assessees and issued refunds,all returns filed on the same day and within a week's time refunds issued on a single day in all cases. In one case the ITO can make an excuse that it was through over sight, but if it's 21 cases! For the same cases when prosecution has already been launched under one law/Act and even before it has reached the beginning stage of hearing in the court another prosecution is launched under a different law/Act. His second prosecution under the IT provisions clearly proves that Police has no role to play in tax matters as initiation of prosecution is only on reaching finality that it is a fit case for prosecution(again a supreme court verdict)and the complaint cannot be lodged to the police. A certified copy of the Chief Commissioner's sanction order also was applied for and there was a silence from the IT Dept..The assessee no doubt had filed two returns with wrong claims, but was misguided by the Dept itself and once he realized the facts, he in good faith repaid the refunds. This basically being a SALARIED case, so much of legality, technicality, harassment could easily have been avoided as this case involves hardly any application of mind for assessment. Now, the assessee is continuously harassed with notice u/s.271(1)c, calls from the police, attendance before the police and above all these fresh FIR for the same offence. No where is the mention of the IT staff involvement and innocents and most unconcerned are dragged into the case as accused.Kindly advise.
Regards
Querist :
Anonymous
(Querist) 25 May 2011
Dear Learned friends,
An ITO had lodged complaints with PSI u/s.109,177,192,196,417,420,463,464,465 &468 for filing two returns of income and twice obtaining refunds after the said refunds were repaid in the month of March 2010 and no charge sheet has been filed so far as most of the allegations are false. Now on the same grounds the ITO has filed another prosecution case to the court u/s.277 and 278 of the IT Act.As per the Supreme Court Dicta no second innings is permissible. Kindly advise on what should be our next step. Does it hold good in law?Should we approach the Hon'ble High court for quashing of the same? This clearly shows the high handedness of the IT Dept and Police Dept to cause intentional harassment. How to overcome this complication!
Regards,
Vishwanath
