Ravi Prakash Khetan Son Of Ganga Ram Khetan Resident Of Dahitola Lane, Sujaganj, Jagdishpur P.s.-Kotwali, Dist.-Bhagalpur v. Union Of India Through Dinesh Thakur, Income Tax Officer, W-1 (2),Bhagalpur

IN THE HIGH COURT OF JUDICATURE AT PATNACRIMINAL MISCELLANEOUS No.21895 of 2023 Arising Out of PS. Case No.-593 Year-2011 Thana- ECONOMIC OFFENCES, BIHARDistrict- Patna ======================================================RAVI PRAKASH KHETAN Son of Ganga Ram Khetan Resident of DahiTola Lane, Sujaganj, Jagdishpur P.S.-Kotwali, Dist.-Bhagalpur ... ... Petitioner/s Versus Union of India through Dinesh Thakur, Income Tax Officer, W-1 (2),Bhagalpur ... ... Opposite Party/s ====================================================== Appearance :For the Petitioner/s: Mr. Prabhat Ranjan Singh, Advocate For the Opposite Party/s : Ms. Archana Sinha @ Shahi, Sr. Standing Counsel ====================================================== CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMAORAL JUDGMENTDate : 10-11-2023 Heard learned counsel for the petitioner and Ms.Archana Sinha @ Shahi, learned Senior Standing Counsel assistedby Ms. Prachi Pallavi, learned Advocate. 2. Learned counsel for the petitioner submits that thepresent quashing application has been filed seeking quashing ofthe order dated 11.08.2022 passed in Complaint Case No. 593(C)of 2011 by the learned Special Judge, Economic Offence, Patnawhereby the petition filed by the petitioner under Section 245Cr.P.C. seeking discharge has been rejected. 3. Learned counsel for the petitioner submits that petitioner is an income tax assessee. For the assessment year 2009-2010, the last date for filing income tax return was 31.08.2009 interms of Section 139(1) of the Income Tax Act, 1961. It is further submitted that the petitioner for some reason beyond his controlwas not able to submit his return of income tax for the assessmentyear 2009-2010 by the last date i.e. 31.08.2009. It is nextsubmitted that since petitioner could not file his return by the lastdate i.e. 31.08.2009 as such a notice under Section 148 of theIncome Tax dated 22.10.2010 was issued to the petitionerrecording therein that the authority has reason to believe thatincome chargeable to tax for the assessment year 2009-2010 hasescaped assessment within the meaning of Section 147 of theIncome Tax Act, 1961, accordingly, the petitioner was directed tosubmit his income for assessment within thirty days of the receiptof the notice dated 22.10.2010. 4. Learned counsel for the petitioner submits that thenotice dated 22.10.2010 was received by the petitioner on16.11.2010 but prior to receiving the notice dated 22.10.2010, thepetitioner had already filed his return for the assessment year2009-2010 on 26.10.2010 with requisite fine. Learned counselfurther submits that after the petitioner filed his return on26.10.2010 though belatedly thereafter he received a notice dated11.01.2011 under Section 276CC of the Income Tax Act, 1961asking him to show cause that as to why a criminal prosecution benot launched for not submitting the return for the assessment year 2009-2010 even after the expiry of the assessment year by31.03.2010. It is next submitted that the notice dated 11.01.2011also took note of the earlier notice dated 22.10.2010 issued underSection 148 of the Income Tax Act. 5. Learned counsel for the petitioner submits that thenotice dated 11.01.2011 (Annexure-3 to the quashing application)was not replied by the petitioner thereafter he again received anotice dated 07.02.2011 (Annexure-4 to the quashing application)under Section 276CC of the Income Tax Act wherein it wasrecorded that earlier notice dated 11.01.2011 was sent but no replyof the same was submitted within seven days of the receipt of thesaid letter as such a second opportunity is being given to submitthe reply by 15.02.2011. 6. Learned counsel for the petitioner further submitsthat the petitioner vide his reply dated 14.02.2011 replied thenotice dated 07.02.2011 addressed to the Income Tax Officer,Ward No. 1(2) Bhagalpur wherein he recorded that the delay was aroutine delay on account of lack of knowledge and health illnessand the delay was not willful. 6. Learned counsel for the petitioner further submitsthat the petitioner vide his reply dated 14.02.2011 replied thenotice dated 07.02.2011 addressed to the Income Tax Officer,Ward No. 1(2) Bhagalpur wherein he recorded that the delay was aroutine delay on account of lack of knowledge and health illnessand the delay was not willful. 7. Learned counsel for the petitioner submits that whatis not disputed rather stands admitted is that the petitioner forsome personal problem could not reply the notice dated 11.01.2011 but he submitted his reply with respect to the notice dated07.02.2011 on 14.02.2022 but his reply was not considered and theinstant criminal prosecution was launched under Section 276CC ofthe Income Tax Act. 8. Learned counsel for the petitioner submits that beforeinitiating criminal prosecution, the authority ought to have rejectedthe reply of the petitioner dated 14.02.2011 but withoutconsidering and rejecting the reply of the petitioner, launching ofthe criminal prosecution cannot be countenanced for the reasonthat the petitioner had taken a stand in his reply that on account ofill health, lack of knowledge, the return could not be filed on timeand non-filing of the return was not willful. Learned counsel nextsubmits that until and unless non-filing of the return is willful andthe authorities came to a considered conclusion based on reasonthat the delayed filing of return was willful then only a prosecutionunder Section 276CC of the Income Tax can be launched. 9. Learned counsel appearing on behalf of the Income Tax Department draws the attention of the Court to Annexure-5 tothe counter affidavit at page 19 to submit that the reply of thepetitioner was considered and it was not found satisfactory aswould be evident from the order dated 31.03.2011 passed by theCommissioner of Income Tax, Bhagalpur. 10. Learned counsel for the petitioner rebuts thesubmission of the learned counsel appearing on behalf of theIncome Tax Department and submits that the order dated31.03.2011 is cryptic and lacks in essential details. It is furthersubmitted that the order dated 31.03.2011 takes note of the noticedated 22.10.2010 issued under Section 148 of the Income Tax Actbut then the order does not even remotely reflect that the authorityhad considered the other two notices as recorded hereinabove wasalso issued to the petitioner to which the petitioner had repliedrather in one line it has been stated that the reply of the assessee isnot satisfactory but then does not assign any reason for arriving ata conclusion that as to why and on what basis the authority cameto a conclusion that the reply of the petitioner was not satisfactory. 11. The Court concurs with the submission of thelearned counsel for the petitioner. The order dated 31.03.2011though records that the reply of the assessee is not satisfactory butthen does not assign any reason for arriving at that conclusionwhen petitioner had taken stand that on account of his ill health thereturn was not filed on time and delayed filing was not willful norintentional. 12. Considering the submission made by the learnedcounsel for the petitioner, the order dated 11.08.2022 passed in Complaint Case No. 593(C) of 2011 by the learned Special Judge,Economic Offence, Patna whereby the petition filed by thepetitioner under Section 245 Cr.P.C. seeking discharge has beenrejected, is hereby quashed. 13. Accordingly, this application stands allowed. (Satyavrat Verma, J) Kundan/- AFR/NAFRN.A.CAV DATEN.A.Uploading Date10.11.2023Transmission Date10.11.2023