And Crl.m.p.(Md) Nos.8203 And 8204 Of 2019 v. Income Tax Department, O/O.principal Commissioner Of Income Tax-2, Madurai, Rep. By The Assistant Commissioner Of Income Tax Circle-I, Nagercoil

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 12.03.2020CORAM :THE HONOURABLE MR.JUSTICE G.R.SWAMINATHANCrl.O.P(MD)No.13383 of 2019 andCrl.M.P.(MD) Nos.8203 and 8204 of 2019 1.M/s.Bejan Singh Eye Hospital Pvt. Ltd., No.313,-C, M.S.Road, Vettoornimadam, Nagercoil – 629 003.2.Dr.S.M.Bejan Singh, Managing Director, M/s.Bejan Singh Eye Hospital Pvt. Ltd., No.313,-C, M.S.Road, Vettoornimadam, Nagercoil – 629 003.3.Smt.Rooshitha Bejan Singh, Director, M/s.Bejan Singh Eye Hospital Pvt. Ltd., No.313,-C, M.S.Road, Vettoornimadam, Nagercoil – 629 003. ... Petitioners/Accused 1 to 3Vs. Income Tax Department,O/o.Principal Commissioner of Income Tax-2,Madurai,Rep. By the Assistant Commissioner of Income Tax Circle-I,Nagercoil. ... Respondent / ComplainantPrayer: This Criminal Original Petition is filed under Section 482of Cr.P.C., to call for the records and to quash the case inC.C.No.425 of 2019 on the file of the Additional Chief JudicialMagistrate, Madurai insofar as the petitioners are concerned.For Petitioners : Mr.Ashok PadmarajFor Respondent : Mrs.S.Srimathy, Senior Standing Counsel O R D E R This criminal original petition has been filed to quashing theproceedings in C.C.No.425 of 2019 on the file of learned AdditionalChief Judicial Magistrate, Madurai. The petitioners are facingtrial for the offences under Sections 276 C(2) of the Income TaxAct.https://hcservices.ecourts.gov.in/hcservices/ 2.The learned standing counsel appearing for the respondentstrongly opposed the prayer for quashing. A detailed counteraffidavit has also been filed. 3.The petitioner's counsel reiterated the contentions set outin the memorandum of grounds. 4.I carefully considered the rival contentions and went throughthe materials on record, particularly the counter affidavit as wellas the impugned complaint. It is not in dispute that the firstpetitioner is an assessee under Income Tax Act and the petitioners 2and 3 are its Managing Director and Director respectively. Theissue concerns the financial year 2011-2012 to 2014-2015. It is notin dispute that the petitioners had filed their income tax return intime admitting their liability. But then the tax was not remittedin time. There was delay. The question that arises for myconsideration is whether this will amount a wilful evasionattracting the aforesaid penal provisions. 5.The issue is no longer res integra. The learned counselappearing for the petitioner drew my attention to the decision madeby the Hon'ble Karnataka High Court in Crl.P.No.4891 of 2014, dated14.06.2019. The Hon'ble Karnataka High Court in the aforesaiddecision held as follows: “In the instant case, the only circumstance reliedon by the respondent in support of the charge levelledagainst the petitioners is that, even though accusedfiled the returns, yet, it failed to pay the self-assessment tax along with the returns. Thiscircumstance even if accepted as true, the same does notconstitute the offence under Section 276C (2) of theAct. The act of filing the returns by itself cannot beconstrued as an attempt to evade tax, rather thesubmission of the returns would suggest that petitionerNo.1 had voluntarily declared his intention to pay tax.The act of submitting returns is not connected with theevasion of tax. It is only an act which is closelyconnected with the intended crime, that can be construedas an act in attempt of the intended offence. In thebackdrop of this legal principle, the Hon’ble SupremeCourt in the case of Prem Dass – vs – Income Tax Officercited supra, has held that a positive act on the part ofthe accused is required to be established to bring homethe charge against the accused for the offence underSection 276C(2) of the Act.” 6.It is admitted in the counter affidavit itself that thepetitioner have since cleared the dues and as on date no tax dueshttps://hcservices.ecourts.gov.in/hcservices/ 6.It is admitted in the counter affidavit itself that thepetitioner have since cleared the dues and as on date no tax dueshttps://hcservices.ecourts.gov.in/hcservices/ are payable in respect of the aforesaid financial years. Inasmuchas the tax has been subsequently paid, I am of the view thatcontinuance of the impugned prosecution would only amount to anabuse of legal process. Respectfully following the judgment of theHon'ble Karnataka High Court, the impugned proceedings stand quashedand the criminal original petition is allowed. Consequently,connected miscellaneous petitions are closed. // True Copy // Sd/- Assistant Registrar (AD-II) / /2020Sub Assistant Registrar(CS) iasTo:1.The Additional Chief Judicial Magistrate, Madurai. 2.Income Tax Department, O/o.Principal Commissioner of Income Tax-2, Madurai, Rep. By the Assistant Commissioner of Income Tax Circle-I, Nagercoil.+1 CC to M/s.M.ASHOK PADMARAJ, Advocate ( SR-11669[F] +1 CC to M/s.S.SRIMATHY, Advocate ( SR-11639[F] dated 13/03/2020 ) SMA/05/05/2020/3P/5C Crl.O.P(MD)No.13383 of 2019 12.03.2020