Crl Op(Md)/17978/2016 Of Rajkumar Thiyagarajan v. Income Tax Department

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04.11.2020 CORAM: THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN Crl.M.P.(MD)Nos.8946 and 8947 of 2016 Rajkumar Thiyagarajan Income Tax Department,O/o. The Principal Commissioner of Income Tax,Madurai,Represented byS.Murugesan,Income Tax Officer,Ward II, Theni. ... Respondent /Complainant Prayer:Criminal Original petition filed under Section 482 of Codeof Criminal Procedure, to call for records relating to the impugnedcomplaint in C.C.No.13 of 2016 on the file of the Additional ChiefJudicial Magistrate, Madurai and quash the same as illegal. This petition has been filed to quash the proceedings inC.C.No.13 of 2016 on the file of the learned Additional ChiefJudicial Magistrate, Madurai, as against the petitioner. 2.The learned counsel for the petitioner would submit that therespondent gave a complaint for the offence punishable underSections 276 (C)(1) and 276 CC of the Income Tax Act 1961, allegingthat the petitioner has failed to submit the return for theassessment year 2013-14. The Income Tax Return was filed only on29.03.2016. He further submitted that the petitioner has received ashow cause notice, dated 29.04.2016 and by his reply, datedhttps://hcservices.ecourts.gov.in/hcservices/ 24.05.2016 explained that the return of the Assessment Year 2013-14had already filed on 29.03.2016 and the cash deposits more thanRs.10,00,000/- (Rupees Ten lakhs only) can be properly accountedwith the sources in the books of accounts and TDS mentioned in theletter of the respondent, dated 29.04.2014. He further submittedthat the computation of income as shown in the return filed on29.03.2016 would indicate that the petitioner is entitled to refundof the tax to the tune of Rs.1,070/- and the tax payable by thepetitioner amounting to the tune of Rs.7,19,409/-. The authorityconcerned, who accorded sanction to prosecute the petitioner, dated29.07.2016 stated that no material was placed on record to evidencethe submissions of illness of the petitioner's mother and thedepression suffered by his accountant for delay in filing ofreturns. He further submitted that the sanction was accorded toprosecute the petitioner only for the offence punishable underSection 276 CC of the Income Tax Act. Whereas the complaint hasfiled by the respondent for the offence punishable under Sections276 (C)(1) and 276 CC of the Income Tax Act, 1961. Therefore, theentire complaint is vitiated and liable to be quashed. He furthersubmitted that the case of the petitioner is false under Section 276CC proviso (ii) (b) of the Income Tax Act, and as such, the entirecomplaint is liable to be quashed. 3.Section 276 CC proviso (ii) (b) provides that a person shallnot be proceeded against under this section for failure to furnishin due time the Return of fringe benefits under Sub Section (i) of115WD or return of income under Section 139 (1) if the tax payableby him on the total income determined on regular assessment does notexceed Rs.3,000/- as reduced by advance tax paid and any taxdeducted at source. 4.The return filed by the petitioner in the year 2013-14 showsthat tax payable by the petitioner is nil and he is also claimingfor refund of the tax payable have been adjusted against the advancetax payable and tax deducted at source for the assessment year 2013-14. The return filed by the petitioner for the year 2013-14 showsthat tax payable by the petitioner and his claiming for refund ofthe tax payable have been adjustable against the advance payableand the source for the assessment year 2013-14. 4.The return filed by the petitioner in the year 2013-14 showsthat tax payable by the petitioner is nil and he is also claimingfor refund of the tax payable have been adjusted against the advancetax payable and tax deducted at source for the assessment year 2013-14. The return filed by the petitioner for the year 2013-14 showsthat tax payable by the petitioner and his claiming for refund ofthe tax payable have been adjustable against the advance payableand the source for the assessment year 2013-14. 5.The learned counsel appearing for the respondent would submitthat the petitioner did not file return and also did not pay any taxfor the assessment year 2013-14. Therefore, the respondent hasissued a show cause notice as contemplated under Section 276 CC ofthe Income Tax Act, dated 29.04.2016 for appearance of thepetitioner herein. The petitioner herein did not appear in person,but through his authorized representative has issued a reply on24.05.2016. Since the said reply is not satisfactory and no proofhad been adduced to prove the case of the petitioner. Therefore,the respondent has obtained sanction from the Principal Commissionerhttps://hcservices.ecourts.gov.in/hcservices/of Income Tax, Madurai, to prosecute the petitioner herein. He further submitted that the grounds raised by the petitioner cannotbe considered under Section 482 of Cr.P.C. when the factualdisputes arise. All the points can be considered only during thetrial before the trial Court. Hence, he prayed for dismissal of thequash petition. 6.It is seen that the petitioner is the sole accused. Therespondent has filed a complaint alleging that the petitioner hasfailed to file his Income Tax Return for the Assessment Year 2013-14. However, the petitioner has filed an income tax returns on29.03.2016. On perusal of the returns filed by the petitioner thatthe total tax with interest payable by the petitioner is a sum ofRs.7,19,409/-. Total tax amount paid by the petitioner includingadvance tax TDS, TCS and also self assessment tax to the tune ofRs.7,20,484/-. Therefore, the petitioner has also claimed refund ofthe income tax to the tune of Rs.1,070/-. Further, the PrincipalCommissioner of Income Tax, Madurai, accorded sanction by order,dated 29.07.2016, to prosecute the petitioner for the offencepunishable under Section 276 CC of the Income Tax Act. Whereas onperusal of the complaint, the respondent has lodged a complaint forthe offence punishable under Sections 276 (C) (i) and 276 CC of theIncome Tax Act. Even according to the defacto complainant, thepetitioner has failed to file the Income Tax return for theassessment year 2013-14 within time. Therefore, he can be prosecutedfor the offence under Section 276 CC of the Income Tax Act. WhereasSection 276 (C) (i) related to if a person wilfully attempts in anymanner whatsoever to evade any tax, penalty or interest chargeableor imposable. Admittedly, the petitioner has failed to pay the taxin time and subsequently, he has filed Income Tax return on29.03.2016. Therefore, the respondent without application of mindmechanically filed a complaint that too without any allegation forthe offence punishable under Section 276 (C) (i) of the Income TaxAct. 7.That apart, the Section 276 CC proviso (ii) (b) provides thata person shall not be proceeded against under this section forfailure to furnish in due time the return of fringe benefits underSub Section (i) of 115 WD or return of income under Section 139 (1)if the tax payable by him and the total income determined on regularassessment does not exceed Rs.3,000/- as reduced by advance taxpaid and any tax deducted at source. On perusal of the return filedby the assessment year 2013-14 revealed that the tax payable by thepetitioner is nil and he also claimed for refund of the tax afteradjusting the other payment made under as advance TDS, TCS and selfassessment tax and claimed a sum of Rs.1,070/-. Therefore, theentire complaint is nothing but clear abuse of process of law and itcannot be sustained as against the petitioner. 8.In view of the above discussion, this Criminal OriginalPetition is allowed and the proceedings in C.C.No.13 of 2016 on thehttps://hcservices.ecourts.gov.in/hcservices/file of the learned Additional Chief Judicial Magistrate, Madurai is Crl.O.P.(MD)No.17978 of 2016 quashed as against the petitioner herein. Consequently, connectedmiscellaneous petitions are closed. // True Copy // Sd/- Assistant Registrar (CS-III) vsd / /2020Sub Assistant Registrar(CS) To The Additional Chief Judicial Magistrate,Madurai. +1 CC to M/s.S.SRIMATHY, Advocate ( SR-21281[F] dated 05/11/2020 ) Crl.O.P.(MD)No.17978 of 2016 andCrl.M.P.(MD)Nos.8946 and 8947 of 201604.11.2020 VB (02.12.2020) 4P 3C https://hcservices.ecourts.gov.in/hcservices/