JUDGMENT
S. SANKARA SUBBAN, J. :
The Original Petition has been filed to quash Ext. P9. Ext. P9 is a complaint filed by the Dy. CIT(Asst.), Special Range, Thrissur, against the petitioners before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam, for offences under ss. 276C(1) and 277(ii) r/w s. 278B of the IT Act. During the pendency of the original petition the 3rd petitioner died. Counsel for the petitioners submitted that on the same facts penalty proceedings were initiated against the petitioners under s. 271(1) (c) of the IT Act. But these proceedings had been set aside finally by the Tribunal by Ext. P10 order and reference application Ext. P11 has also been dismissed. Hence, the counsel for the petitioners contends that since the basis of the complaint is not there, Ext. P9 should be quashed. Counsel for the Revenue submitted that the petitioners have to approach the Magistrate Court and bring to the notice of that Court regarding the subsequent developments. Even though, earlier this Court had quashed the said proceedings on the basis that the penalty proceedings have been set aside, subsequently in two Division Bench decisions a contrary view has been taken. That is in Upasana Hospital & Nursing Home & Anr. vs. ITO (1996) 130 CTR (Ker) 412 and P. K. Narayanan vs. CIT (1996) 131 CTR (Ker) 76. In both these cases the Division Bench has taken the view that it cannot be said that prosecution will not be maintainable and the same is to be quashed the moment the appellate authority cancels the order imposing penalty. Every case will have to be considered separately and a decision will have to be taken according to the facts of each case. The Division Bench in those two cases directed the petitioner to approach the Magistrate Court with a prayer for discharging on the various grounds mentioned.
2. In the above view of the matter, I do not see any ground to interfere. The petitioners can approach the Magistrate Court and file applications for discharging them on the ground that the penalty proceedings had been dropped.
With the above directions the original petition is disposed of.