Subhash Ann v. The Income Tax Officer Non Corporate Ward-15[1] Room

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 07.10.2021 CORAM THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN Crl.OP.No.27485/2016 & Crl.MP.No.14001/2016 [Video Conferencing] Subhash Ann...Petitioner/AccusedVersus The Income Tax OfficerNon Corporate Ward-15[1]Room No.204, 2[nd] FloorWanaparthy BlockNo.121, Mahatma Gandhi RoadChennai 600 034....Respondent/Complainant Prayer : - Criminal Original Petition filed under Section 482of Cr.P.C., to call for the records relating to the complaint ofthe respondent in EOCC.No.125/2016 on the file of the AdditionalChief Metropolitan Magistrate, Economic Offence-1, Egmore,Chennai-8 and quash the same. For Petitioner:Mr.M.V.SwaroopFor Respondent:Mr.N.BaskaranSpecial Public Prosecutor ORDER (1)The petition has been filed questioning the furtherpendency of EOCC.No.125/2016 on the file of the learnedAdditional Chief Metropolitan Magistrate/EO-II, Egmore,Chennai. (2)The petitioner who is an individual, had, according to therespondent, failed to file the Income Tax Return within thestipulated period for the Assessment Year 2013-2014.Subsequently, with a delay, the petitioner had filed theassessment. It had also been examined by the respondentand it is an admitted position by both the learned counselfor the petitioner and the learned Special PublicProsecutor appearing for the respondent that on suchassessment, it had been determined that the petitioner doesnot fall within the tax structure and there is no liabilityto pay tax. In effect, it is what is known as a ''NIL Return of Net Tax Payable''. Owing to the delay in filingthe Income Tax Return, the petitioner, however had beenmulcted with a complaint lodged by the respondent which hadbeen taken cognizance by the learned Additional ChiefMetropolitan Magistrate/EO-II, Egmore. Questioning thesaid summons and also the complaint which had beenpreferred against the petitioner / accused under Section276CC of the Income Tax Act, 1961, the present petition hasbeen filed. (3)Section 276CC of the Income Tax Act, 1961, is as follows:-276CC:-Failure to furnish returns of income:- If a person wilfully fails to furnish in duetime the return of fringe benefits which he isrequired to furnish under sub-section (1) ofsection 115WD or by notice given under sub-section (2) of the said section or section 115WHor the return of income which he is required tofurnish under sub-section (1) of section 139 bynotice given under clause (i) of sub-section (1)of section 142 or section 148 or section 153A,he shall be punishable,— (i) in a case where the amount of tax, whichwould have been evaded if the failure had notbeen discovered, exceeds twenty-five hundredthousand rupees, with rigorous imprisonment fora term which shall not be less than six monthsbut which may extend to seven years and withfine; (ii) in any other case, with imprisonmentfor a term which shall not be less than threemonths but which may extend to two years andwith fine: Provided that a person shall not be proceededagainst under this section for failure tofurnish in due time the return of fringebenefits under sub-section (1) of section 115WDreturn of income under sub-section (1) ofsection 139— (i) for any assessment year commencing priorto the 1st day of April, 1975; or (ii) for any assessment year commencing onor after the 1st day of April, 1975, if— (a) the return is furnished by him beforethe expiry of the assessment year; or (ii) in any other case, with imprisonmentfor a term which shall not be less than threemonths but which may extend to two years andwith fine: Provided that a person shall not be proceededagainst under this section for failure tofurnish in due time the return of fringebenefits under sub-section (1) of section 115WDreturn of income under sub-section (1) ofsection 139— (i) for any assessment year commencing priorto the 1st day of April, 1975; or (ii) for any assessment year commencing onor after the 1st day of April, 1975, if— (a) the return is furnished by him beforethe expiry of the assessment year; or (b) the tax payable by such person, not being acompany, on the total income determined onregular assessment, as reduced by the advancetax or self-assessment tax, if any, paid beforethe expiry of the assessment year, and any taxdeducted or collected at source, does not exceedten thousand rupees.company, on the total income determined onregular assessment, as reduced by the advancetax or self-assessment tax, if any, paid beforethe expiry of the assessment year, and any taxdeducted or collected at source, does not exceedten thousand rupees. (4)The law gives a small leverage to an assessee, to file aReturn with a delay and thereafter, the respondent is underan obligation to examine the said Return.Return with a delay and thereafter, the respondent is underan obligation to examine the said Return. (5)In the instant case, on such examination, it had beendetermined that no tax is payable by the petitioner hereinfor the said Assessment Year 2013-2014.determined that no tax is payable by the petitioner hereinfor the said Assessment Year 2013-2014. (6)I hold that keeping the said EOCC.No.125/2016 on the fileof the Additional Chief Metropolitan Magistrate/EO-II,Egmore, Chennai, and the present petition on the file ofthis Court, would be an exercise in futility as certainly,the present petitioner would be taking advantage of theassessment order of the respondent.of the Additional Chief Metropolitan Magistrate/EO-II,Egmore, Chennai, and the present petition on the file ofthis Court, would be an exercise in futility as certainly,the present petitioner would be taking advantage of theassessment order of the respondent. (7)It is a fact that the Income Tax should have been filedwithin the stipulated period. But still, in view of theproviso to Section 276CC of the Income Tax Act, 1961, Ihold that some leverage can be granted to the petitionerherein. This is not a case where income earned, had beenhidden or screened away from the authorities. It is not acase where tax payable, had not been paid. It is actuallya case where Return discloses that there was no tax payableat all.within the stipulated period. But still, in view of theproviso to Section 276CC of the Income Tax Act, 1961, Ihold that some leverage can be granted to the petitionerherein. This is not a case where income earned, had beenhidden or screened away from the authorities. It is not acase where tax payable, had not been paid. It is actuallya case where Return discloses that there was no tax payableat all. (8)In view of that fact, I would interfere with theproceedings pending in EOCC.No.125/2016.proceedings pending in EOCC.No.125/2016. (9)In the result, the Criminal Original Petition standsallowed and the proceedings in EOCC.No.125/2016 now pendingon the file of the Additional Chief MetropolitanMagistrate/EO-II,Egmore,Chennaiisquashed.Consequently, connected miscellaneous petition is closed.allowed and the proceedings in EOCC.No.125/2016 now pendingon the file of the Additional Chief MetropolitanMagistrate/EO-II,Egmore,Chennaiisquashed.Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar True Copy// Sub Assistant Registrar AP To 1. The Additional Chief Metropolitan Magistrate Economic Offence-2, Egmore, Chennai. Economic Offence-2, Egmore, Chennai. (9)In the result, the Criminal Original Petition standsallowed and the proceedings in EOCC.No.125/2016 now pendingon the file of the Additional Chief MetropolitanMagistrate/EO-II,Egmore,Chennaiisquashed.Consequently, connected miscellaneous petition is closed.allowed and the proceedings in EOCC.No.125/2016 now pendingon the file of the Additional Chief MetropolitanMagistrate/EO-II,Egmore,Chennaiisquashed.Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar True Copy// Sub Assistant Registrar AP To 1. The Additional Chief Metropolitan Magistrate Economic Offence-2, Egmore, Chennai. Economic Offence-2, Egmore, Chennai. 2. The Income Tax Officer Non Corporate Ward-15[1] Room No.204, 2[nd] Floor Wanaparthy Block No.121, Mahatma Gandhi Road Chennai 600 034. Non Corporate Ward-15[1] Room No.204, 2[nd] Floor Wanaparthy Block No.121, Mahatma Gandhi Road Chennai 600 034. 3. The Special Public Prosecutor Income Tax Department High Court, Madras. Income Tax Department High Court, Madras. +1cc to Mr.M.V.Swaroop, Advocate, S.R.No.52860 Crl.OP.No.27485/2016 SJ[co]NSK 28/10/2021