The Central Bureau of Investigation 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 judgment 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.