TaxTMI 
TaxTMI 
2022 (5) TMI 118
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....itional Chief Metropolitan Magistrate Court in E.O.C.C.132/2019. Stating that, the tax payable by the petitioners for the Assessment Year 2017-18 was paid well before the issuance of show cause notice and same was intimated to the authorities, without applying the mind and not considering the payment of tax with interest, sanction to prosecute granted and the private complaint came to be filed suppressing the factum of payment of tax much prior to sanction to prosecute. Hence, these two petitions are filed to quash the complaint on the ground that, there is a lack of ingredient to prosecute the petitioners under section 276 C (2), besides suppression of fact and non- application of mind. 3. The un-controverted facts of the case is that, M/s.AMK Solutions Pvt Limited is an Income Tax Assessee having PAN No:AAHCA2131L. For the Assessment Year 2017-2018 they have filed self assessment return on 31/10/2017 declaring the income and tax payable. However, the tax admitted to be payable not remitted by the assessee along with the returns, which is the requirement of the law under Section 140 A of Income Tax Act, 1961. The assessee, after a delay of 4 ½ months, has remitted a sum ....
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....essment, Section 140-A mandates the assessee to submit the returns along with the proof of payment of tax. As per Sub-Section (3) of Section 140 A, any failure on the part of the assessee to pay the tax in whole or in part along with the returns, will be deemed to be a default and without prejudice to the other consequences, the assessee shall be liable for prosecution. Further, under Section 278 E of the Act, there is a statutory presumption there is a culpable mental state to evade tax. To the reverse burden is on the assessee, therefore the factual aspect of non-existence of culpable mental state is matter for trial. The complaint cannot be quashed invoking Section 482 of Cr.P.C. 7. To buttress his submissions, the Learned Counsel for the Respondent-Income Tax Department relied upon the following judgments: 1. Prakash Nath Khanna -vs- Commissioner of Income Tax reported in (2004) 135 Taxman 327 (SC). 2. Madhumilan Syntex Limited & Others -vs- Union of India & another reported in (2007) 11 SCC 297. 3. Sasi Enterprises -vs- Assistant Commissioner of Income Tax reported in (2014) 5 SCC 139. 4. M/s.Neeharika Infrastructure Pvt Ltd -vs- State of....
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.... income as declared in the return as reduced by the amount of,- (a) advance tax, if any, paid; (b) any tax deducted or collected at source; [(ba) any relief of tax claimed under section 89;] (c) any relief of tax or deduction of tax claimed under section 90 or section 91 on account of tax paid in a country outside India; (d) any relief of tax claimed under section 90A on account of tax paid in any specified territory outside India referred to in that section; and (e) any tax credit claimed to be set off in accordance with the provisions of section 115JAA or section 115JD; (ii) under section 115WK shall be computed on the amount of tax on the value of the fringe benefits as declared in the return as reduced by the advance tax, paid, if any. (1B) For the purposes of sub-section (1), interest payable under section 234B shall be computed on an amount equal to the assessed tax or, as the case may be, on the amount by which the advance tax paid falls short of the assessed tax. Explanation.-For the purposes of this sub-section, "assessed tax" means the tax on the total income as declared in the return as redu....
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....mprisonment for a term which shall not be less than three months but which may extend to [two years] and shall, in the discretion of the court, also be liable to fine. Explanation.-For the purposes of this section, a wilful attempt to evade any tax, payable or interest chargeable or imposable under this Act or the payment thereof shall include a case where any person- (i) has in his possession or control any books of account or other documents (being books of account or other documents relevant to any proceeding under this Act) containing a false entry or statement; or (ii) makes or causes to be made any false entry or statement in such books of account or other documents; or (iii) wilfully omits or causes to be omitted any relevant entry or statement in such books of account or other documents; or (iv) causes any other circumstance to exist which will have the effect of enabling such person to evade any tax, penalty or interest chargeable or imposable under this Act or the payment thereof." 10. The contention of the Standing Counsel for the Income Tax Department is that, the failure to remit the tax and annexing the proof of payment ....
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....e of opinion as to the estimates and not a case of concealment of income or even furnishing of inaccurate particulars of income. 9. In the aforesaid premises, the High Court was totally in error in interfering with the order of acquittal passed by the learned Sessions Judge by an elaborate and well-reasoned judgment. We have no hesitation to come to the conclusion that the ingredients of offence under Sections 276- C and 277 of the Income Tax Act have not been established by the prosecution beyond reasonable doubt, and therefore, the appellant cannot be convicted of the offence under the said sections." 13. In the instant case, admittedly there is no concealment of any source of income or taxable item, inclusion of a circumstance aimed to evade tax or furnishing of inaccurate particulars regarding any assessment or payment of tax. What is involved is only a failure on the part of the petitioner to pay the tax in time, which was later on paid after 4 ½ months along with interest payable. So, it would not fall under the mischief of Section 276 C of the Income Tax Act, which requires an attempt to evade tax and such attempt must be a wilful. 14. If the intention ....