CBI :ITAT order irrelevant on 'Q'

The CBI on Thursday contended before a Delhi court that there is no change in government's stand on withdrawing the case against Italian businessman Ottavio Quattrocchi in the wake of the Income Tax Appellate Tribunal (ITAT) order in the Bofors pay-offs case.

Additional Solicitor General P P Malhotra said, "The judgement of the tribunal is wholly irrelevant and reliance on it is totally misconceived." He made it clear that there has been no change in the stand of the government on withdrawing the case against Quattrocchi after the Chief Metropolitan Magistrate Vinod Yadav queried about government's position on the issue.

"There are clear findings that dispute before the tribunal was in relation to Income Tax liability rather than fixing any criminal liability or accountability of the assessee (Quattrocchi and Win Chadha) for any other law or obligation," Malhotra said while pleading for withdrawal of criminal case against 70-year-old Quattrocchi.

"It has given a finding relying on the Supreme Court decision that the proceedings are purely administrative. The assessing officer is not a court. The proceedings before it are not strictly judicial proceedings," Malhotra said, adding, "Rules of rigour evidence are not applicable and there is difference between criminal proceedings and judicial proceedings.

"The tribunal again relied upon the evidence collected by the investigating agency which in law is not a legal piece of evidence. The tribunal did not even consider the judgement passed by the Delhi High Court which dealt with criminal liability of the accused person in the Bofors pay-offs case," Malhotra, appearing for the CBI, contended.

Malhotra asked the court not to rely on the ITAT order while deciding the plea of the CBI for withdrawing case against Quattrocchi as that proceeding was different from the criminal proceeding against Quattrocchi. "It is a settled position that criminal liability and the liability under the Income Tax Act are separate and distinct. Whereas findings in a tax liability may be based on inadmissible evidence whereas a conviction in the trial court can be based only on reliable evidence," Malhotra said.

"There was no assessment order passed against them and in any case, assessment proceedings and criminal proceedings, being separate and distinct, no reliance can be placed on tribunal's judgement which is wholly irrelevant and inadmissible," he further contended.

Meanwhile, Advocate Ajay Agarwal, who has challenged the CBI move, opposed the agency's contentions seeking withdrawal of the prosecution against the elusive Italian businessman saying, "In the changed circumstances, the probe agency should withdraw its application and file a fresh affidavit detailing its future action to bring back Quattrocchi to face the trial."

He moved a fresh application seeking directions to the CBI to respond to the judgement of the ITAT in which it has been said that Quattrocchi had received kickbacks in the gun deal. "The CBI application for withdrawal of prosecution against Quattrocchi is not a bonafide plea as it has been filed at the behest of the political masters," Agarwal submitted.

The court, after hearing the contentions of the CBI and Agarwal, adjourned the matter for further hearing to February 10 after the advocate pleaded time to go through all the documents related to the Bofors pay-offs case. The court also allowed Agarwal to go through judicial records of the case in the larger public interest so that the CBI's plea could be decided. Earlier, on Tuesday, the CBI had contended there was "nothing new" in the ITAT order that would obstruct the withdrawal of the over two-decade-old criminal proceedings against Quattrocchi. "I am not disputing what the tribunal has said. That is the case of prosecutor (CBI) also and it is mentioned in the chargesheet. There is nothing new," the additional solicitor general had told the court.

Agarwal, however, had sought fresh examination of the matter in the wake of the ITAT order that kickbacks of Rs 61 crore were paid to late Win Chaddha and Quattrocchi in the Howitzer gun deal.

The CBI had registered a criminal case on January 20, 1990 to probe who were the beneficiaries of the pay-offs in the 1986 Bofors gun deal. After completing its probe, the agency filed two chargsheets in the case first on October 22, 1999 and the second one on October 9, 2000.

The CBI had, in October 2009, sought permission of the court to withdraw the case against Quattrocchi, saying that his continued prosecution was "unjustified" in the light of various factors including the failed attempts of CBI to extradite him.

"The continuance of prosecution against Quattrocchi will be unjustified. It is considered expedient in the interest of justice that the proceedings against him should not be continued and be withdrawn," the CBI had pleaded in its 9-page application.

Quattrocchi has never appeared before any court in the country. CBI had failed on two occasions in its attempt to get Quattrocchi extradited -- first from Malaysia in 2003 and then from Argentina in 2007.

Agarwal, who has been pursuing the case in the Supreme Court and had approached the trial court against CBI's move to seek a closure of the case, contended the Centre and the agency were trying to close the case despite having sufficient evidence against Quattrocchi.

The plea was countered by CBI which said it was difficult to secure presence of Quattrocchi for prosecution and, moreover, all other accused are either dead or charges against them have been quashed by the Delhi High Court.