M/S UPKAR and MAGAR (INDIA) V. THE INCOME TAX DEPARTMENT

CRL.P/9522/2016

AI Insights

The case involves multiple criminal petitions filed by M/S Upkar & Magar (India) and its partners against the orders issued by the III JMFC, Belagavi, which took cognizance and issued processes against them for alleged delays in filing income tax returns under Section 276 CC of the Income Tax Act, 1961. The petitions challenged the legality of the cognizance and process issuance, arguing non-compliance with procedural requirements under the Criminal Procedure Code (Cr.P.C.), particularly Section 200, which mandates examination of the complainant and witnesses unless exempted under specific conditions. The Income Tax Department represented by its Deputy Commissioner contested the petitions, asserting that all procedural aspects were duly followed. The court found procedural lapses in the presentation and handling of the complaints, leading to the setting aside of the impugned orders.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 755306 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 28-06-2017
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961, Criminal Procedure Code, 1973
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: Y V RAVIRAJ
• Assessee Lawyers: ARAVIND KULKARNI
• Keywords: Cognizance; Criminal Procedure; Criminal Procedure; Delay in Filing Returns; Income Tax; Process issuance
• Section: 153A; 200; 276 CC

Judgement Text

" : 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH. DATED THIS THE 28TH DAY OF JUNE 2017. BEFORE THE HON’BLE MR. JUSTICE BUDIHAL R.B. CRIMINAL PETITION NO.9522 OF 2016. C/W CRIMINAL PETITION NO.9523 OF 2016. CRIMINAL PETITION NO.9524 OF 2016. CRIMINAL PETITION NO.9525 OF 2016. CRIMINAL PETITION NO.9526 OF 2016. CRIMINAL PETITION NO.9527 OF 2016. CRIMINAL PETITION NO.101400 OF 2016. CRIMINAL PETITION NO.101471 OF 2016. CRIMINAL PETITION NO.101472 OF 2016. CRIMINAL PETITION NO.101473 OF 2016. CRIMINAL PETITION NO.101474 OF 2016. CRIMINAL PETITION NO.101475 OF 2016. CRIMINAL PETITION NO.101476 OF 2016. IN CRIMINAL PETITION NO.9522 OF 2016. BETWEEN: 1. M/S UPKAR & MAGAR (INDIA) OFICE P.B.ROAD, YALAPUR ONI, HUBLLI, DIST: DHARWAD. REPRESENTED BY ITS MANAGING PARTNER, SHRI. TAIZUN FAKHRUDDIN MAGAR, : 2 : 2. SHRI.TAIZUN FAKHRUDDIN MAGAR, AGED AOBUT 39 YEARS, MANAGING PARTNER, M/S. UPKAR & MAGAR (INDIA), OFFICE P.B.ROAD, YALLAPUR ONI, HUBBALLI, DIST-DHARWAD. 3. SHRI.JUZAR ABBAS MAGAR AGED ABOUT 39 YEARS, M/S. UPKAR & MAGAR (INDIA) OFFICE P.B.ROAD, YALLAPUR ONI, HUBBALLI, DIST DHARWAD. ... PETITIONERS (BY SRI. ARAVIND D KULKARNI, ADVOCATE) AND THE INCOME TAX DEPARTMENT REPRESENTED BY ITS DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, PLOT NO.123, SARAF COLONY, KHANAPUR ROAD, SHRADDHA BUILDING, TILAKWADI, BELAGAVI. ... RESPONDENT (BY SRI. Y V RAVIRAJ,ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER OF PROCESS ISSUED BY THE III J.M.F.C.,BELAGAVI DATED 18.02.2016 VIDE ANNEXURE-B IN C.C.NO.304/2016 CONSEQUENTLY ALL FURTHER PROCEEDINGS IN C.C.NO.304/2016 PURSUANT TO THE SAME IN CRIMINAL PETITION NO.9523 OF 2016. BETWEEN: 1. M/S UPKAR & MAGAR (INDIA) OFFICE P.B.ROAD, YALLAPUR ONI, HUBLLI, DIST:DHARWAD, REPRESENTED BY ITS MANAGING PARTNER, SHRI TAIZUN FAKHRUDDIN MAGAR : 3 : 2. SHRI. TAIZUN FAKHRUDDIN MAGAR AGED ABOUT 39 YEARS, MANAGING PARTNER, M/S UPKAR & MAGAR (INDIA) OFFICE P B ROAD, YALLAPUR ONI, HUBLLI DIST: DHARWAD 3. SHRI. JUZAR ABBAS MAGAR AGED ABOUT 39 YEARS, M/S UPKAR & MAGAR(INDIA), OFFICE P B ROAD, YALLAPUR ONI, HUBLLI DIST:DHARWAD. ... PETITIONERS (BY SRI. ARAVIND D KULKARNI, ADVOCATE) AND THE INCOME TAX DEPARTMENT REPRESENTED BY ITS DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, PLOT NO.123, SARAF COLONY, KHANAPUR ROAD, SHRADDHA BUILDING, TILAKWADI, BELAGAVI ... RESPONDENT (BY SRI. Y V RAVIRAJ, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER OF PROCESS ISSUED BY THE III J.M.F.C., BELAGAVI DATED 18.02.2016 VIDE ANNEXURE-B IN C.C.NO.305/2016 CONSEQUENTLY ALL FURTHER PROCEEDINGS IN C.C.NO.305/2016 PURSUANT TO THE SAME. IN CRIMINAL PETITION NO.9524 OF 2016. BETWEEN 1. M/S UPKAR & MAGAR (INDIA) OFFICE P.B.ROAD, YALLAPUR ONI, HUBLLI, DIST: DHARWAD-580020. REPRESENTED BY ITS MANAGING PARTNER, SHRI. TAIZUM FAKHRUDDIN MAGAR : 4 : 2. SHRI TAIZUN FAKHRUDDIN MAGAR AGED ABOUT 39 YEARS, MANAGING PARTNER, M/S. UPKAR & MAGAR (INDIA) OFFICE P B ROAD, YALLAPUR ONI, HUBLLI. DIST:DHARWAD-580020. 3. SHRI JUZAR ABBAS MAGAR AGED ABOUT 39 YEARS, M/S UPKAR & MAGAR(INDIA), OFFICE P B ROAD, YALLAPUR ONI, HUBLLI. DIST: DHARWAD-580020. ... PETITIONERS (BY SRI. ARAVIND D KULKARNI, ADVOCATE) AND THE INCOME TAX DEPARTMENT REPRESENTED BY ITS DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, PLOT NO.123, SARAF COLONY, KHANAPUR ROAD, SHRADDHA BUILDING, TILAKWADI, BELAGAVI-590001. ... RESPONDENT (BY SRI.Y.V.RAVIRAJ, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CR.P.C BY THE ADVOCATE FOR THE PETITIONERS PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER OF PROCESS ISSUED BY THE III J.M.F.C., BELAGAVAI DATED 18.02.2016 ANNEXURE-B IN C.C.NO.306/2016 AND CONSEQUENTLY ALL FURTHER PROCEEDINGS IN C.C.NO.306/2016 PURSUANT TO THE SAME. IN CRIMINAL PETITION NO.9525 OF 2016. BETWEEN 1. M/S UPKAR & MAGAR (INDIA) OFFICE P.B.ROAD,YALLAPUR ONI, HUBLI,DIST:DHARWAD, 580020. REPRESENTED BY ITS MANAGING PARTNER, SHRI TAIZUN FAKHRUDDIN MAGAR, : 5 : 2. SHRI TAIZUN FAKHRUDDIN MAGAR AGED ABOUT 39 YEARS MANAGING PARTNER, M/S UPKAR & MAGAR (INDIA), OFFICE P B ROAD,YALLAPUR ONI, HUBBALLI,DIST:DHARWAD-580020. 3. SHRI JUZAR ABBAS MAGAR AGED ABOUT 39 YEARS M/S UPKAR & MAGAR (INDIA) OFFICE P B ROAD, YALLAPUR ONI, HUBBALLI, DIST:DHARWAD-580020. ... PETITIONERS (BY SRI. ARAVIND D KULKARNI, ADVOCATE) AND THE INCOME TAX DEPARTMENT REPRESENTED BY ITS DEPUTY COMMISSIONER, OF INCOME TAX,CENTRAL CIRCLE-1 PLOT NO.123,SARAF COLONY, KHANAPUR ROAD, SHRADDHA BUILDING, TILAKWADI, BELAGAVI-590001. ... RESPONDENT (BY SRI. Y V RAVIRAJ, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER OF PROCESS ISSUED BY THE III J.M.F.C., BELAGAVI DATED 18.02.2016 VIDE ANNEXURE-B IN C.C.NO.307/2016 CONSEQUENTLY ALL FURTHER PROCEEDINGS IN C.C.NO.307/2016 PURSUANT TO THE SAME. IN CRIMINAL PETITION NO.9526 OF 2016. BETWEEN 1. M/S. UPKAR & MAGAR (INDIA), OFICE P.B.ROAD, YALAPUR ONI, HUBLLI, DIST-DHARWAD-580020. REPRESENTED BY ITS MANAGING PARTNER, SHRI. TAIZUN FAKHRUDDIN MAGAR, : 6 : 2. SHRI.TAIZUN FAKHRUDDIN MAGAR, AGED AOBUT 39 YEARS, MANAGING PARTNER, M/S. UPKAR & MAGAR (INDIA), OFFICE P.B.ROAD, YALLAPUR ONI, HUBBALLI, DIST-DHARWAD-580020. 3. SHRI.JUZAR ABBAS MAGAR AGED ABOUT 39 YEARS, M/S. UPKAR & MAGAR (INDIA), OFFICE P.B.ROAD, YALLAPUR ONI, HUBBALLI, DIST-DHARWAD-580020. ... PETITIONERS (BY SRI. ARAVIND D KULKARNI, ADVOCATE) AND THE INCOME TAX DEPARTMENT REPRESENTED BY ITS DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, PLOT NO.123, SARAF COLONY, KHANAPUR ROAD, SHRADDHA BUILDING, TILAKWADI, BELAGAVI-590001. ... RESPONDENT (BY SRI. Y V RAVIRAJ, ADVOCATE) THIS CRIMINAL PETITON IS FILED UNDER SECTION 482 CR.P.C BY THE ADVOCATE FOR THE PETITIONERS PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER OF PROCESS ISSUED BY THE III J.M.F.C., BELAGAVI DATED 18.02.2016 VIDE ANNEXURE-B IN C.C.NO.308/2016 CONSEQUENTLY ALL FURTHER PROCEEDINGS IN C.C.NO.308/2016 PURSUANT TO THE SAME. IN CRIMINAL PETITION NO.9527 OF 2016. BETWEEN 1. M/S UPKAR & MAGAR (INDIA), OFICE P.B.ROAD, YALAPUR ONI, HUBLLI, DIST-DHARWAD-580020. REPRESENTED BY ITS MANAGING PARTNER, SHRI. TAIZUN FAKHRUDDIN MAGAR, : 7 : 2. SHRI.TAIZUN FAKHRUDDIN MAGAR, AGED AOBUT 39 YEARS, MANAGING PARTNER, M/S. UPKAR & MAGAR (INDIA), OFFICE P.B.ROAD, YALLAPUR ONI, HUBBALLI, DIST-DHARWAD-580020. 3. SHRI.JUZAR ABBAS MAGAR, AGED ABOUT 39 YEARS, M/S. UPKAR & MAGAR (INDIA) OFFICE P.B.ROAD, YALLAPUR ONI, HUBBALLI, DIST DHARWAD-580020. ... PETITIONERS (BY SRI. ARAVIND D KULKARNI, ADVOCATE) AND THE INCOME TAX DEPARTMENT REPRESENTED BY ITS DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, PLOT NO.123, SARAF COLONY, KHANAPUR ROAD, SHRADDHA BUILDING, TILAKWADI, BELAGAVI-591303. ... RESPONDENT (BY SRI. Y V RAVIRAJ, ADVOCATE) THIS CRIMINAL PETITON IS FILED UNDER SECTION 482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER OF PROCESS ISSUED BY THE III J.M.F.C.,BELAGAVI DATED 18.02.2016 VIDE ANNEXURE-B IN C.C.NO.309/2016 CONSEQUENTLY ALL FURTHER PROCEEDINGS IN C.C.NO.309/2016 PURSUANT TO THE SAME. IN CRIMINAL PETITION NO.101400 OF 2016. BETWEEN 1. M/S UPKAR & UPKAR (INDIA), OFFICE P B ROAD, YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. REPRESENTED BY ITS MANAGING PARTNER, SHRI.FAKHRUDDIN A MAGAR. : 8 : 2. SHRI.FAKRUDDIN AKBARALI MAGAR, AGED ABOUT 63 YEARS, MANAGING PARTNER, M/S. UPKAR & UPKAR (INDIA), OFFICE P B ROAD, YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. 3. SHRI.JUZAR ABBAS MAGAR, AGED ABUT 47 YEARS, M/S. UPKAR & UPKAR (INDIA), OFFICE P B ROAD, YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. 4. SHRI.SHABBIR ABBAS MAGAR, AGED ABOUT 51 YEARS, OCC: PARTNER OF M/S.UPKAR & UPKAR (INDIA), OFFICE P B ROAD, YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. ... PETITIONERS (BY SRI. ARAVIND D KULKARNI, ADVOCATE) AND THE INCOME TAX DEPARTMENT, REPRESENTED BY ITS DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, PLOT NO.123, SARAF COLONY, KHANAPUR ROAD, SHRADDHA BUILDING, TILAKWADI, BELAGAVI. ... RESPONDENT (BY SRI. Y V RAVIRAJ, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO CALL FOR THE RECORDS AND PROCEEDINGS OF CC NO.315/2016 FROM THE HON'BLE COURT OF J.M.F.C. III COURT, BELAGAVI AND TO SET ASIDE THE ORDER OF PROCESS ISSUED BY THE 3RD J.M.F.C., BELAGAVI DATED 18/02/2016 ANNEXURE-B (IN C.C. NO.315/2016) AND ALL FURTHER PROCEEDINGS PURSUANT TO THE SAME. : 9 : IN CRIMINAL PETITION NO.101471 OF 2016. BETWEEN 1. M/S MAGAR & MAGAR (INDIA), OFFICE P B ROAD, YALLAPOUR ONI, HUBBALLI, DIST: DHARWAD. REPRESENTED BY ITS MANAGING PARTNER, SHRI.ABBAS F MAGAR. AGE: 40 YEARS. 2. SHRI.ABBAS FAKHRUDDIN MAGAR, AGED ABOUT 40 YEARS, MANAING PARTNER, M/S MAGAR & MAGAR (INDIA), OFFICE P B ROAD, YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. 3. SHRI.ASGARALI ISMAIL MAGAR, AGED ABOUT 65 YEARS, M/S MAGAR & MAGAR (INDIA), OFFICE P B ROAD, YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. ... PETITIONERS (BY SRI. ARAVIND D KULKARNI, ADVOCATE) AND THE INCOME TAX DEPARTMENT, REPRESENTED BY ITS DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, PLOT NO.123, SARAF COLONY, KHANAPUR ROAD, SHRADDHA BUILDING, TILAKWADI, BELAGAVI. ... RESPONDENT (BY SRI. Y.V.RAVIRAJ, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., SEEKING TO CALL FOR THE RECORDS AND PROCEEDINGS OF CRIMIANL CASE NO. 281 OF 2016 FROM THE HON'BLE COURT OF JUDICIAL MAGISTRATE FIRST CLASS-III COURT, BELAGAVI AND SET ASIDE THE ORDER OF PROCESS ISSUED BY THE 3RD JUDICIAL MAGISTRATE FIRST CLASS COURT BELAGAVI DATED 18.02.2016 ANNEXURE-A (IN CRIMINAL CASE NO.281 OF 2016). : 10 : IN CRIMINAL PETITION NO.101472 OF 2016.. BETWEEN 1. M/S MAGAR & MAGAR (INDIA), OFFICE P B ROAD, YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. REPRESENTED BY ITS MANAGING PARTNER, SHRI.ABBAS F MAGAR, AGE: 40 YEARS. 2. SHRI.ABBAS FAKHUDDIN MAGAR, AGED ABOUT 40 YEARS, MANAING PARTNER, M/S MAGAR & MAGAR (INDIA), OFFICE P B ROAD, YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. 3. SHRI.ASGARALI ISMAIL MAGAR, AGED ABOUT 65 YEARS, M/S MAGAR & MAGAR (INDIA), OFFICE P B ROAD, YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. ... PETITIONERS (By SRI. ARAVIND D KULKARNI,ADVOCATE) AND THE INCOME TAX DEPARTMENT, REPRESENTED BY ITS DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, PLOT NO.123, SARAF COLONY, KHANAPUR ROAD, SHRADDHA BUILDING, TILAKWADI, BELAGAVI. ... RESPONDENT (BY SRI.Y.V.RAVIRAJ, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., SEEKING TO CALL FOR THE RECORDS AND PROCEEDINGS OF CRIMIANL CASE NO.282 OF 2016 FROM THE HON'BLE COURT OF JUDICIAL MAGISTRATE FIRST CLASS-III COURT, BELAGAVI AND SET ASIDE THE ORDER OF PROCESS ISSUED BY THE 3RD JUDICIAL MAGISTRATE FIRST CLASS COURT BELAGAVI DATED 18.02.2016 ANNEXURE-A(IN CRIMINAL CASE NO. 282 OF 2016). : 11 : IN CRIMINAL PETITION NO.101473 OF 2016. BETWEEN 1. M/S MAGAR & MAGAR (INDIA), OFFICE P B ROAD,YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. REPRESENTED BY ITS MANAGING PARTNER, SHRI.ABBAS F MAGAR. AGE: 40 YEARS. 2. SHRI.ABBAS FAKHRUDDIN MAGAR, AGED ABOUT 40 YEARS, MANAING PARTNER, M/S MAGAR & MAGAR (INDIA), OFFICE P B ROAD, YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. 3. SHRI.ASGARALI ISMAIL MAGAR, AGED ABOUT 65 YEARS, M/S MAGAR & MAGAR (INDIA), OFFICE P B ROAD, YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. ... PETITIONERS (BY SRI. ARAVIND D KULKARNI, ADVOCATE) AND THE INCOME TAX DEPARTMENT, REPRESENTED BY ITS DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, PLOT NO.123, SARAF COLONY, KHANAPUR ROAD, SHRADDHA BUILDING, TILAKWADI, BELAGAVI. ... RESPONDENT (BY SRI.Y. V.RAVIRAJ,ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., SEEKING TO CALL FOR THE RECORDS AND PROCEEDINGS OF CRIMINAL CASE NO. 283 OF 2016 FROM THE HON'BLE COURT OF JUDICIAL MAGISTRATE FIRST CLASS-III COURT, BELAGAVI AND SET ASIDE THE ORDER OF PROCESS ISSUED BY THE 3RD JUDICIAL MAGISTRATE FIRST CLASS COURT BELAGAVI DATED 18.02.2016 ANNEXURE-A(IN CRIMINAL CASE NO. 283 OF 2016). : 12 : IN CRIMINAL PETITION NO.101474 OF 2016. BETWEEN 1. M/S MAGAR & MAGAR (INDIA), OFFICE P B ROAD,YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. REPRESENTED BY ITS MANAGING PARTNER, SHRI.ABBAS F MAGAR. AGE: 40 YEARS. 2. SHRI.ABBAS FAKHRUDDIN MAGAR, AGED ABOUT 40 YEARS, MANAGING PARTNER, M/S MAGAR & MAGAR (INDIA), OFFICE P B ROAD, YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. 3. SHRI.ASGARALI ISMAIL MAGAR, AGED ABOUT 65 YEARS, M/S MAGAR & MAGAR (INDIA), OFFICE P B ROAD, YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. ... PETITIONERS (BY SRI. ARAVIND D KULKARNI, ADVOCATE) AND THE INCOME TAX DEPARTMENT, REPRESENTED BY ITS DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, PLOT NO.123, SARAF COLONY, KHANAPUR ROAD, SHRADDHA BUILDING, TILAKWADI, BELAGAVI. ... RESPONDENT (BY SRI.Y. V.RAVIRAJ,ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., SEEKING TO CALL FOR THE RECORDS AND PROCEEDINGS OF CRIMINAL CASE NO. 284 OF 2016 FROM THE HON'BLE COURT OF JUDICIAL MAGISTRATE FIRST CLASS-III COURT, BELAGAVI AND SET ASIDE THE ORDER OF PROCESS ISSUED BY THE 3RD JUDICIAL MAGISTRATE FIRST CLASS COURT BELAGAVI DATED 18.02.2016 ANNEXURE-A(IN CRIMINAL CASE NO. 284 OF 2016). : 13 : IN CRIMINAL PETITION NO.101475 OF 2016. BETWEEN 1. M/S MAGAR & MAGAR (INDIA), OFFICE P B ROAD,YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. REPRESENTED BY ITS MANAGING PARTNER, SHRI.ABBAS F MAGAR. AGE: 40 YEARS. 2. SHRI.ABBAS FAKHRUDDIN MAGAR, AGED ABOUT 40 YEARS, MANAGING PARTNER, M/S MAGAR & MAGAR (INDIA), OFFICE P B ROAD, YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. 3. SHRI.ASGARALI ISMAIL MAGAR, AGED ABOUT 65 YEARS, M/S MAGAR & MAGAR (INDIA), OFFICE P B ROAD, YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. ... PETITIONERS (BY SRI. ARAVIND D KULKARNI, ADVOCATE) AND THE INCOME TAX DEPARTMENT, REPRESENTED BY ITS DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, PLOT NO.123, SARAF COLONY, KHANAPUR ROAD, SHRADDHA BUILDING, TILAKWADI, BELAGAVI. ... RESPONDENT (BY SRI.Y. V.RAVIRAJ,ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., SEEKING TO CALL FOR THE RECORDS AND PROCEEDINGS OF CRIMINAL CASE NO. 285 OF 2016 FROM THE HON'BLE COURT OF JUDICIAL MAGISTRATE FIRST CLASS-III COURT, BELAGAVI AND SET ASIDE THE ORDER OF PROCESS ISSUED BY THE 3RD JUDICIAL MAGISTRATE FIRST CLASS COURT BELAGAVI DATED 18.02.2016 ANNEXURE-A(IN CRIMINAL CASE NO. 285 OF 2016). : 14 : IN CRIMINAL PETITION NO.101476 OF 2016. BETWEEN 1. M/S MAGAR & MAGAR (INDIA), OFFICE P B ROAD,YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. REPRESENTED BY ITS MANAGING PARTNER, SHRI.ABBAS F MAGAR. AGE: 40 YEARS. 2. SHRI.ABBAS FAKHRUDDIN MAGAR, AGED ABOUT 40 YEARS, MANAGING PARTNER, M/S MAGAR & MAGAR (INDIA), OFFICE P B ROAD, YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. 3. SHRI.ASGARALI ISMAIL MAGAR, AGED ABOUT 65 YEARS, M/S MAGAR & MAGAR (INDIA), OFFICE P B ROAD, YALLAPUR ONI, HUBBALLI, DIST: DHARWAD. ... PETITIONERS (BY SRI. ARAVIND D KULKARNI, ADVOCATE) AND THE INCOME TAX DEPARTMENT, REPRESENTED BY ITS DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, PLOT NO.123, SARAF COLONY, KHANAPUR ROAD, SHRADDHA BUILDING, TILAKWADI, BELAGAVI. ... RESPONDENT (BY SRI.Y. V.RAVIRAJ,ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., SEEKING TO CALL FOR THE RECORDS AND PROCEEDINGS OF CRIMINAL CASE NO. 286 OF 2016 FROM THE HON'BLE COURT OF JUDICIAL MAGISTRATE FIRST CLASS-III COURT, BELAGAVI AND SET ASIDE THE ORDER OF PROCESS ISSUED BY THE 3RD JUDICIAL MAGISTRATE FIRST CLASS COURT BELAGAVI DATED 18.02.2016 ANNEXURE-A(IN CRIMINAL CASE NO. 286 OF 2016). : 15 : THESE PETITIONS ARE COMING ON FOR ADMISSION THIS DAY, THE COURT, MADE THE FOLLOWING: COMMON ORDER Learned counsel Sri. Y.V.Raviraj present and submits that he will accept the notice on behalf of the respondent, the Income Tax Department, in Criminal Petition No.9524/2016 and Criminal Petition No.9527/2016. Said submission of the learned counsel Sri.Y.V.Raviraj is placed on record. 2. Since all the petitions have common questions of law in facts, and in order to avoid repetition of discussion all the petitions are taken together to dispose of them by this common order. 3. These petitions are filed by the petitioner-accused challenging the legality and correctness of the order of the learned Magistrate to register the criminal case and taking of cognizance and issuing process to the petitioners-accused, on the grounds as mentioned in the petitions. : 16 : 4. Brief facts of the case of the respondent-complainant are that, the petitioners are doing the business since long time. When this being the fact respondent has filed the private complaint, making the partnership firm as accused No.1 and its Managing Partner and other persons as accused in the said case. The cases are filed in J.M.F.C-III Court, Belagavi, wherein the respondent herein has prayed the Hon’ble Court to take cognizance of the alleged offence punishable under Section 276 CC of the Income Tax Act, summon the accused try them and punish them in accordance with law. It is alleged in the private complaint that accused No.1 is an assessee on the file of the respondent complainant, notice under Section 153A of the Income Tax Act 1961, was issued and served on the accused to file the returns of income within 30 days. The petitioner Firm e-filed returns of income tax, on the respective dates as mentioned in the petitions. The case of the complainant is that, accused filed returns of income belatedly and accused delayed the furnishing of the returns of income by 13 months and : 17 : therefore accused is liable to be prosecuted as per the provisions of Section 276 CC of the Income Tax Act 1961. Show cause notice was issued to the accused as to why proceedings should not be initiated under Section 276 CC of the said Act, for not filing the return of income within the stipulated time. To the said notice accused filed the written submission. The further allegation is that the written submission was not supported any valid reason to explain the delay in filing of returns. Hence, the respondent-complainant sought for the reliefs in the private complaint for taking action against the above mentioned accused persons in accordance with law. 5. Heard the learned counsel appearing for the petitioners in respect of all petitions and also the learned counsel appearing for the respondent Income Tax Department in respect of the all the petitions. 6. Learned counsel appearing for the petitioners- accused made the submission that the procedure followed by the learned III-J.M.F.C Court, Belagavi, is not in : 18 : accordance with law and that the mandatory requirements of Section 200 of Cr.P.C. were also not complied with before ordering to register the criminal case, taking cognizance and issuing the process. He made the submission that complainant was also not present on the day, when the complaints were presented before the learned III-J.M.F.C.Court, Belagavi. He submitted that on behalf of the complainant, the Advocate appearing for the respondent Income Tax Department presented the complaint before the Court. He also submitted that, looking to the order sheet maintained in the said criminal cases, the complaint was also not presented before the Court directly, but it was presented before the Sheristedar of the said Court, and it was the Sheristedar, who examined the file, at the first instance, and put his endorsement that the file is in order. He also made the submission that the said Sheristedar of III- J.M.F.C.,Court,Belgavi, also made an endorsement that the Income Tax Department, filed the charge sheet in the case. Hence, the learned counsel submitted that : 19 : everything was attended to by the Sheristedar of the Court and the learned Magistrate just put his signature without verifying the materials. There is no mental application of mind by the learned Magistrate before passing such order. He also submitted that looking to paragraph No.3 of the private complaint, the complainant sought exemption under Section 256 of the Cr.P.C., for appearance before the Court. Counsel submitted said provision is also not made applicable that too on the day of presentation of the complaint at the first instance. He also made the submission that looking to the punishment that, can be imposed for the alleged offence is 7 years. Hence it is his submission that, in view of this the case has to be tried by the learned J.M.F.C,Court, as warrant case and it is not summons case. On all these grounds the learned counsel appearing for the petitioners in all the petitions contended that the order under challenge is not at all maintainable in law and therefore, the petitions are to be allowed and the impugned orders are to be set-aside. : 20 : 7. Per contra the learned counsel appearing for the respondent Income Tax Department during the course of arguments, made the submission that in the complaint itself permission was sought with the learned J.M.F.C. Court, for dispensing with the appearance of the complainant before the Court as per Section 256 of the Cr.P.C. He also made the submission that looking to the punishment, the minimum punishment is not less than 06 months which may extend to 7 years. Hence he made the submission that the provisions of Section 256 of the Cr.P.C. are very much applicable to the case on hand. Learned counsel further made the submission that looking to the order sheet in all the cases, there is a mention made by the learned J.M.F.C.Court, that he perused the documents and then passed the order, therefore, there is a mental application by the learned J.M.F.C.Court before passing such order. Hence the counsel made the submission that all the procedural aspect have been complied with and only after that the impugned orders are passed by the J.M.F.C. Court. There is no illegality : 21 : committed, nor there is any perverse or capricious view taken in passing such orders. Hence he submitted that there is no merit in any of the above petitions. Learned counsel lastly made a fair submission that, there are some mistakes while filing such petitions. He ultimately submitted to reject the petitions. 8. Perused the grounds urged in the petitions, the order passed by the learned J.M.F.C.Court, for directing registration of the complaint ,taking cognizance, and issuing of the process and also I have perused the contents of the private complaint. I have considered the submissions made by the learned counsels on both sides at the bar. In all the above cases the respondent Income Tax Department filed private complaint under Section 200 of the Cr.P.C. Admittedly, even according to the complainant, the complaint was not presented before the Court at the time of presenting complaint, but it was presented before the J.M.F.C.,Court, that too before the Sheristedar of the said Court through the Advocate for the respondent : 22 : department. Looking to Section 200 of the Cr.P.C., if the complaint is by the public servant, as per the proviso there is exemption for examination of the complainant and his witnesses, wherein it is provided that when the complaint is made in writing the Magistrate need not examine the complainant and the witnesses. Clause (a) and (b) of the said proviso reads as under. 200. Examination of complainant – XXXX Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192. Therefore looking to the proviso to Section 200 of the Cr.P.C. nowhere there is an exemption for dispensing with the presence of the complainant before the Court. The only exemption is in recording the sworn statement of the complainant as well as his witnesses. When that is so : 23 : complaint ought to have been presented before the Court, to present the complaint directly to the concerned Magistrate, which is not done in this case. Apart from that, as submitted by the learned counsel appearing for the petitioner, perusing the order sheet it is mentioned that “Relief: Relief Income Tax Department submitted the charge sheet against the accused No.1 to 3 papers verified and found correct submitted for orders”. Below that the designation of the person who has put up for orders, is mentioned as ‘Shreistedar’ and the office note is signed by the said official. This goes to show that at the first instance papers were presented not before the Magistrate directly, but they were presented before the Sheristedar of the said Court. This is the private complaint filed praying the Court to take action in the matter. Whereas, the Sheristedar has mentioned that Income Tax Department submitted the charge sheet. On the very day of presentation of the complaint, where is the question of filing the charge sheet by the Income Tax Department. This itself shows that there is no application of mind, even by the Sheristedar of : 24 : the said Court. Looking to the orders below the name of Sheristedar, it is mentioned by the learned J.M.F.C. perused the papers; perusal of the same reveals that case is made out against accused No.1 to 3 for the alleged offence. Hence cognizance for the offence punishable under Section 276 C.C. of Income Tax Act, is taken against the said accused No.1 to 3. Office to register the case, as calendar case in register No.3 for disposal in accordance with law. Issue summons to accused No.1 to 3. 9. Looking to this order of the learned Magistrate there is no mention by the learned JMFC-III Court at Belagavi as to who presented the complaint before him, even there is no mention by the learned JMFC, whether this complaint was presented before him by the complainant personally or the learned counsel representing the complainant. Apart from that, sofar as case of the respondent/complainant that, they had sought exemption of appearance of the complainant before the JMFC Court, absolutely there is no mention by the JMFC Court : 25 : regarding the said aspect. This also clearly goes to show that, there is no application of mind by the learned JMFC- III Court, at Belagavi before ordering registration of the Criminal Case taking cognizance and issue of the process. 10. The learned counsel appearing for the petitioners, in the above petitions, is justified making the submission that the order has been passed by the learned JMFC-Court mechanically, without applying his judicious mind to the case on hand. In view of these legal infirmities in the case, I am of the opinion that, the petitioners have made out a case to allow the petitions. 11. Accordingly, petitions are allowed, the impugned orders in respect of all the petitions are set aside, matter is remitted back to the concerned JMFC-Court. Complainant has to comply the legal requirements and the learned Magistrate to consider the case afresh and proceed with the matter legally, if so permitted in law. : 26 : 12. The other conditions regarding the merits are kept open. Sd/- JUDGE RHR/CKK/- "