The Honourable Mr.justice A.d.jagadish Chandira v. The Assistant Commissioner Of Income Tax,Non Corporate Circle 8(1)

IN THE HIGH COURT OF JUDICATURE AT MADRAS THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA Crl.O.P.Nos.4027 & 4028 of 2022 andCrl.M.P.Nos.1985, 1986, 1987 & 1988 of 2022 Smt.D.Sasirekha ... Petitioner in both Crl.O.Ps. -Vs- The Assistant Commissioner of Income Tax,Non Corporate Circle 8(1),No.46. M.G.Road,Chennai - 600 034. ..Respondent in both Crl.O.Ps. Prayer in Crl.O.P.No.4027 of 2022: Criminal Original Petition isfiled under Section 482 of the Criminal Procedure Code, pleasedto call for the records and quash the proceedings inE.O.C.C.No.124 of 2019 on the file of Additional ChiefMetropolitan Magistrate, Economic Offences - I, Egmore, Chennai. Prayer in Crl.O.P.No.4028 of 2022: Criminal Original Petition isfiled under Section 482 of the Criminal Procedure Code, pleasedto call for the records and quash the proceedings inE.O.C.C.No.123 of 2019 on the file of Additional ChiefMetropolitan Magistrate, Economic Offences - I, Egmore, Chennai. These Criminal Original Petitions have been filed tocall for the records and quash the proceedings in E.O.C.C.No.124of 2019 and E.O.C.C.No.123 of 2019 on the file of AdditionalChief Metropolitan Magistrate, Economic Offences - I, Egmore,Chennai. 2.The petitioner is facing trial for the offenceunder Section 276C(2) of the Income Tax Act, 1961 for nonpayment of tax within time for the Assessment Year 2018-19/Financial Year ending 31.03.2018 and Assessment Year 2017- https://hcservices.ecourts.gov.in/hcservices/ 18/Financial Year ending 31.03.2017. 3.The case of the petitioner is that she had filedIncome Tax returns for the Assessment Years 2018-19 and 2017-18declaring the income for a sum of Rs.16,28,918/- andRs.5,44,27,440/- The tax and interest was payable on suchincome is Rs.2,90,369/- and Rs.1,96,98,803/-. 4.The learned counsel for the petitioner would submitthat there was some delay on the part of the petitioner inpaying the tax and she had paid the amount in installments andalso paid the entire amount of interest, even prior to filing ofthe complaint. The learned counsel would further submit that itis not the case of concealment or case of willful default inpayment of income tax. Due to the slump in trade, thepetitioner was unable to pay the amount within time. However,he would reiterate the entire amount has been paid, even priorto filing of the complaint by the department. In support of hiscontention, the learned counsel for the petitioner relied on theorder of this Court in Crl.O.P.No.6244 of 2020 dated 25.08.2021in the case of Inland Builders Private Limited and others Vs TheDeputy Commissioner of Income Tax, Corporate Circle 2(2), RoomNo.512, 5 Floor, Wanaparthy Block, 121, Mahatma Gandhi Road,Nungambakkam, Chennai - 600 034 and in Crl.O.P.(MD).No.13383 of2019 in the case of M/s.Bejan Singh Eye Hospital Pvt. Ltd andothers Vs. Income Tax Department, Madurai, dated 12.03.2020. 5.The learned standing counsel appearing for therespondent would submit that the petitioner though had declaredthe income correctly she had defaulted in paying the tax withintime and thereby he would strongly oppose for quashing theproceedings. 6.Heard the learned counsel for the petitioner andthe learned Standing counsel for the respondent and perused thematerials available on record. 7.It in not in dispute, the petitioner is an assesseeof Income Tax, the issue concerns to the delayed payment of taxfor the Assessment Year 2018-19/Financial Year ending 31.03.2018and Assessment Year 2017-18/Financial Year ending 31.03.2017.It is not the case of the respondent/department that thepetitioner concealed the income and she had willfully evadedpayment of tax. This Court is able to see that there had beenno concealment and willful evasion attracting penal provision.Further, as on today there is no tax dues for the AssessmentYear 2018-19/Financial Year ending 31.03.2018 and AssessmentYear 2017-18/Financial Year ending 31.03.2017. 7.It in not in dispute, the petitioner is an assesseeof Income Tax, the issue concerns to the delayed payment of taxfor the Assessment Year 2018-19/Financial Year ending 31.03.2018and Assessment Year 2017-18/Financial Year ending 31.03.2017.It is not the case of the respondent/department that thepetitioner concealed the income and she had willfully evadedpayment of tax. This Court is able to see that there had beenno concealment and willful evasion attracting penal provision.Further, as on today there is no tax dues for the AssessmentYear 2018-19/Financial Year ending 31.03.2018 and AssessmentYear 2017-18/Financial Year ending 31.03.2017. 8.The relevant portion of the order in Crl.O.P.(MD). No.13382 of 2019 is extracted hereunder:- 5.The issue is no longer res integra. Thelearned counsel appearing for the petitioner drew myattention to the decision made by the Hon'bleKarnataka High Court in Crl.O.P.No.4891 of 2014,dated 14.06.2019. The Hon'ble Karnataka High Courtin the aforesaid decision held as follows: ''In the instant case, the only circumstancerelied on by the respondent in support of thecharge levelled against the petitioners is that, eventhough accused filed the returns, yet, it failedto pay the self-assessment tax along with thereturns. This circumstance even if accepted as true,the same does not constitute the offence underSection 276C(2) of the Act. The act of filing thereturns by itself cannot be construed as an attemptto evade tax, rather the submission of the returnswould suggest that petitioner No.1 had voluntarilydeclared his intention to pay tax. The act ofsubmitting returns in not connected with the evasionof tax. It is only an act which is closely connectedwith the intended crime, that can be construed as anact 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 partof the accused is required to be established to bringhome the charge against the accused for the offenceunder Section 276C(2) of the Act.'' 9.In view of the above, the continuance of impugnedprosecution only amounts to abuse the process of law and theproceedings pending on the file of the respondent is liable tobe quashed. 10.In the result, these criminal original petitionsare allowed. Consequently, connected miscellaneous petitionsare closed. Sd/- Assistant Registrar(CS VIII) //True Copy// Sub Assistant Registrar jas/tsh To 1. The Assistant Commissioner of Income Tax, Non Corporate Circle 8(1), No.46. M.G.Road, Chennai - 600 034. +2cc to Mr.S.Santhosh, Advocate, S.R.No.14466,14465 Crl.O.P.Nos.4027 & 4028 of 2022 andCrl.M.P.Nos.1985, 1986, 1987 & 1988 of 2022SV(CO)CT 16/03/2022