JUDGMENT
N.K. Jain, J.
1. The judgment impugned in this revision is rendered in appeal, in affirmance of the judgment of conviction passed by the ACJM, Indore, in Economic Offence Case No. 14 of 1991, convicting the applicants under Section 276C read with Section 278B of the Income-tax Act, 1961, and sentencing them to various punishments.
2. The violation in question pertained to the assessment year 1988-89. The Department besides launching criminal prosecution also initiated proceedings for imposition of penalty under Section 271(1)(c) of the Act. The penalty was imposed by the assessing authority on August 3, 1990. However, in appeal the Commissioner of Income-tax (Appeals) vide his judgment dated December 10, 1997, vacated the penalty. The order of the Commissioner of Income-tax is affirmed in appeal by the Appellate Tribunal vide judgment dated January 31, 2001.
3. This court in Sureshchand Gupta v. Union of India [1998] 233 ITR 783 relying on a Supreme Court decision in G. L. Didwania v. ITO [1997] 224 ITR 687, has held that the conviction under Section 276C read with Section 278B of the Income-lax Act cannot be sustained when the penalty imposed on the same ground is set aside by the Commissioner of Income-tax or the Tribunal. In fact, the very foundation of the prosecution of these applicants is demolished.
4. This revision must therefore succeed and the same is accordingly allowed and the impugned judgments both passed by the trial Magistrate and in appeal by the Sessions Court are set aside and the accused-applicants’ are acquitted. The amount of fine, if realised, be refunded to the applicants.