M.kiran Kumar v. The Assistant Commissioner Of Income Tax, Central Circle-1(4) Room

THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HONOURABLE MR.JUSTICE M.DHANDAPANICRL.O.P.NOS.25698 & 25700 OF 2018ANDCRL.M.P.NOS.14648, 14656 OF 2018 M.Kiran Kumar...Petitioner in both the petitionsVs. The Assistant Commissioner of Income Tax,Central Circle-1(4)Room No.323, 3rd Floor,Investigation Building,46, Mahatma Gandhi Salai,Nungambakkam,Chennai-34....Respondent in both the petitions Common Prayer : These Criminal Original Petition filed underSection 482 of Cr.P.C. to call for the records in complaint inEOCC. Nos.40 & 43 of 2018 pending on the file of the learnedAdditional Chief Metropolitan Magistrate, (E.O.II) Egmore atAllikulam Road, Chennai and quash all further proceedingsagainst the accused. For Respondent : M/s.M.Sheela (in both the petitions) Special Public Prosecutor (IT Cases) COMMON ORDER These two Criminal original petitions are disposed of by wayof this common order since the issue involved is one and thesame. 2. These two Criminal Original Petitions have filed to quashthe complaints in EOCC. Nos.40 & 43 of 2018 pending on the fileof the learned Additional Chief Metropolitan Magistrate,(E.O.II) Egmore at Allikulam Road, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 3. The respondent income tax department conducted searchoperation in the premises of the petitioner and consequent tothe same, a notice under Section 153A of the Income Tax Actdated 09.01.2015 calling upon the petitioner to file his returnof income within the period of 30 days. However, the petitionerfiled the return of income on 03.12.2016 with a delay of 663days admitting a total income of Rs.89 lakhs. The searchoperation involved five assessment years namely 2009-10, 2010-11, 2011-12, 2012-13 & 2013-14. According to the petitioner, hehas filed appeals against the assessment orders before theCommissioner of Income Tax appeals and out of four appeals, twoappeals, for assessment years 2009-10 and 2011-12 have beenallowed. Presently, only two appeals are pending. The petitionerapprehends that many adverse findings in the assessmentproceedings may have an impact on the case pending before thelearned Additional chief Metropolitan Magistrate. As thepetitioner has succeeded in two of the appeals, the petitionerprays that the department could await the outcome of the othertwo appeals. 4. Heard the learned counsel for both sides and perused thematerials available on record. 4. Heard the learned counsel for both sides and perused thematerials available on record. 5. The petitioner is primarily challenging the show causenotice issued by the income tax department for failure of thepetitioner to file his return within time specified by thedepartment. The petitioner has filed the petition with a delayof 663 days. It is the case of the department that the delay waswillful and wanton whereas the petitioner asserts that the delaywas caused only on account of seizure of books of accounts andrecords from his possession and that the delay was not willful.According to the petitioner, he has filed appeal before thefirst appellate authority and the same is pending. Thepetitioner has stated in his affidavit that out of the fourappeals preferred by him before the Commissioner of Income Tax,he has succeed in two of the appeals and the rest of the appealsare pending consideration. The petitioner submits that since theissue is same, he has fair chance of succeeding in the remainingtwo appeals when they are taken up for disposal. Section 153 Aof the Income Tax Act, 1961 provides for the scheme ofassessment of income in case of a searched persons. It is not indispute that pursuant to a search of the books of accountsnotice under Section 153 was issued calling upon the petitionerto file his return of income within a specified date, thepetitioner has filed the said return with a delay of 663 daysadmitting a total income of Rs.89 Lakhs. Pursuant to theassessment orders passed by the assessing officer, thepetitioner, in respect of four assessment orders. filed fourappeals out of which two have ended in his favour and two arestill pending consideration. 6. Section 153 A of the Income Tax Act relates to theassessment of income pursuant to a search. In the case on hand,search resulted in the notice having been issued for fourassessment years against which the petitioner has filed fourindividual appeals of which two appeals ended in favour of thepetitioner. The said fact is not in dispute. In this backdrop,the petitioner claims that the other two appeals, the issuebeing similar in nature, there is likelihood of the same beingallowed and, therefore, and findings recorded in the presentcase would gravely prejudice him subject to the outcome of theappeal, the respondents could very well take steps in accordancewith law. 7. The said stand of the petitioner deserves acceptance.When two of the appeals, which are also similar in nature hasended in favour of the petitioner, any adverse finding that maybe recorded by the Court below would have a cascading effect inthe appeal before the Commissioner of Income Tax (Appeals) and,therefore, in the above backdrop, this Court is of the view thatit would not be in the interest of the petitioner to continuethe prosecution at this point of time. The respondent, subjectto the outcome of the orders in the appeal could very wellproceed against the petitioner in the manner known to law, at alater point of time, as the issue in the present case pertainsto a show cause notice issued pursuant for delay in filing thereturns. 8. This Court is of the considered view that no prejudicewould be caused to the respondents if the present originalpetitions are allowed and any contra view by this Court wouldhave a detrimental effect on the petitioner for the reasonsaforesaid. 9. For the reasons stated above, these Criminal OriginalPetitions are allowed and the complaint in EOCC Nos.40 and 43 of2018 on the file of the Additional Chief Metropolitan Magistrate(E.O.II) Egmore at Allikulam Road, Chennai are quashed.Consequently, connected miscellaneous petitions are closed. rli To 1.The Assistant Commissioner of Income Tax, Central Circle-1(4) Central Circle-1(4) 8. This Court is of the considered view that no prejudicewould be caused to the respondents if the present originalpetitions are allowed and any contra view by this Court wouldhave a detrimental effect on the petitioner for the reasonsaforesaid. 9. For the reasons stated above, these Criminal OriginalPetitions are allowed and the complaint in EOCC Nos.40 and 43 of2018 on the file of the Additional Chief Metropolitan Magistrate(E.O.II) Egmore at Allikulam Road, Chennai are quashed.Consequently, connected miscellaneous petitions are closed. rli To 1.The Assistant Commissioner of Income Tax, Central Circle-1(4) Central Circle-1(4) Room No.323, 3rd Floor, Investigation Building, 46, Mahatma Gandhi Salai, Nungambakkam, Chennai-34. Investigation Building, 46, Mahatma Gandhi Salai, Nungambakkam, Chennai-34. 2.The Additional Chief Metropolitan Magistrate, (E.O.II) Egmore at Allikulam Road, Chennai. (E.O.II) Egmore at Allikulam Road, Chennai. 3.The Public Prosecutor (Special P.P. For I.T.Cases) High Court, Madras. (Special P.P. For I.T.Cases) High Court, Madras. Crl.O.P.Nos.25698 & 25700 of 2018 andCrl.M.P.Nos.14648, 14656 of 2018 SSI(CO)RVM(10/01/2022)