2019 (7) TMI 184

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....petitions. 2. The premises of petitioner No.1 was subjected to search and seizure under Section 132 of the Income Tax Act, 1961 (hereinafter referred to as the Act, for brevity) on 5.7.2011. Consequent to search, assessment proceedings came to be initiated by the Assessing Officer by issuing a notice under Section 153A of the Act dated 27.9.2011 calling upon petitioner No.1 to file its returns of income for the assessment years 2006- 07 to 2011-12. Since there was no compliance of the aforesaid notice, the Assessing Officer issued a show cause notice dated 31.7.2013 calling upon petitioner No.1 as to why prosecution for the offence punishable under Section 276CC of the Act could not be initiated. In response to the said show cause notice, ....

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....titioners. Aggrieved by the impugned action, the petitioners have invoked the jurisdiction of this Court under Section 482 of Cr.P.C. seeking to quash the impugned proceedings. 3. I have heard the learned counsel Sri.K.Suman, appearing for the petitioners and Sri.Jeevan Neeralagi, learned Standing counsel appearing for respondent-Department and have perused the records. 4. The contention of the learned counsel for the petitioners is that the circumstances pleaded by the respondent - Department do not disclose any intention on the part of the petitioners to evade payment of tax. On the other hand, facts disclosed therein reveal that, a sum of Rs. 1,34,03,190 was paid on 7.8.2013 for the assessment year 2009-10 and a sum of Rs. 62,00,000/- ....

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....ent has pointed out that all the payments were made by the petitioners subsequent to the lodging of the complaint and therefore, the said payment do not absolve the petitioners from the rigors of Section 276C(2) of the Act. Even the cheque was issued with a rider not to encash the same. These circumstances, clearly disclose mens rea on the part of the petitioners to evade tax and hence there is no reason to quash the proceedings. 7. I have given my anxious consideration to the rival submissions made at the bar and have carefully scrutinsed the material on record. Undisputedly, petitioners are sought to be prosecuted under Section 276C(2) of the Act. The Section reads as under :- "276C (2) If a person willfully attempts in any manner what....

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....nstrued as an attempt to evade tax, rather the submission of the returns would suggest that petitioner No.1 had voluntarily declared his intention to pay tax. The act of submitting returns is not connected with the evasion of tax. It is only an act which is closely connected with the intended crime, that can be construed as an act in attempt of the intended offence. In the backdrop of this legal principle, the Hon'ble Supreme Court in the case of Prem Dass - vs - Income Tax Officer cited supra, has held that a positive act on the part of the accused is required to be established to bring home the charge against the accused for the offence under Section 276C(2) of the Act. 10. In the case on hand, conduct of petitioner No.1 making payments ....