TaxTMI 
TaxTMI 
2023 (10) TMI 628
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....fences, Ranchi. 3. The complaint case was filed by opposite party no. 2 alleging therein that a search under Section 132 of the Income Tax Act was undertaken in Mongia Group of cases by the Investigating Wing, Jharkhand and during the course of search operation, various incriminating documents relating to the petitioner were found and seized. It was further alleged that notices under Section 153A of the Income Tax Act for filing of returns of income for the Assessment Year 2005-06 to 2009-10 and 2010-11 were issued by the Assistant Commissioner of Income Tax, Central Circle, Dhanbad and the same were served on 15.02.2011 for compliance, but there was no compliance. It was also alleged that the petitioner was granted time till 15.04.2011 and further till 05.05.2011 for compliance, but there was no compliance. It was alleged that under the circumstances, the Assessing Officer issued a show-cause notice under Section 276 of the Income Tax Act on 19.07.2011 for initiation of prosecution proceeding for non-filing of return of income in time. It was further alleged that the petitioner filed a letter dated 26.07.2011 and took a plea that since the office of the Director General of Cent....
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....Section 153A of the Income Tax Act. Again letter dated 25.04.2011 was filed by the petitioner and time till 05.05.2011 was granted to the petitioner. He further submits that on 19.07.2011, a show-cause notice under Section 276CC of the Income Tax was issued for initiation of prosecution proceeding for non-filing of income tax returns and the petitioner was directed to file reply by 29.07.2011. The petitioner vide letter dated 26.07.2011 stated that since the office of the Director General, Central Excise, Intelligence, Jamshedpur did not give copy of the ceased documents during search and seizure operation, therefore, he was unable to furnish return. The Commissioner of Income Tax, Central Circle, Patna accorded sanction under Section 279 of the Income Tax Act for launching prosecution under Section 276 CC of the Income Tax Act and, thereafter, the present complaint case has been filed, contained in Annexure-1 of the petition and the learned Court has taken cognizance vide order dated 04.06.2012 under Section 276CC of the Income Tax Act. He submits that on 29.12.2011, assessment orders were passed by the Assessing Officer against the petitioner for the Assessment Years 2004- 05 to ....
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....76CC of the Income Tax Act. He submits that in this background, when there is no demand, filing of the prosecution itself is bad in law. He submits that to allow to continue the proceeding will amount to abuse of process of law. He further submits that the case arising out of the same search and seizure, the petitioner and Balvinder Singh Saluja @ Balvinder Singh moved before this Court in Cr.M.P. No. 1245 of 2017, which was allowed vide judgment dated 29.08.2023. He submits that the present case is identical to that case and in view of that, the entire criminal proceedings may kindly be quashed. 5. Mr. Sahay, learned counsel appearing for opposite party no. 2-Income Tax Department submits that his argument has been taken note of by this court in Cr.M.P. No.1245 of 2017 at paragraphs 5 and 6 and he is further adopting the same argument. 6. In view of the above submissions of the learned counsel for the parties, the Court has gone through the material on record and finds that the amount in question has already been set at rest in view of different orders passed by the Appellate Authority as well as the Tribunal, as has been noted in the argument of Mr. Gadodia, learned counsel....
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....n our view, once the finding of concealment and subsequent levy of penalties under Section 271(1)(c) of the Act has been struck down by the Tribunal, the Assessing Officer has no other alternative except to correct his order under Section 154 of the Act as per the directions of the Tribunal. As already noticed, the subject matter of the complaint before this Court is concealment of income arrived at on the basis of the finding of the Assessing Officer. If the Tribunal has set aside the order of concealment and penalties, there is no concealment in the eyes of law and, therefore, the prosecution cannot be proceeded with by the complainant and further proceedings will be illegal and without jurisdiction. The Assistant Commissioner of Income Tax cannot proceed with the prosecution even after the order of concealment has been set aside by the Tribunal. When the Tribunal has set aside the levy of penalty, the criminal proceedings against the appellants cannot survive for further consideration. In our view, the High Court has taken the view that the charges have been framed and the matter is in the stage of further cross-examination and, therefore, the prosecution may proceed with the tr....
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....ceived by the firm was not credited in its account and instead credited to the accounts of Lachhman Dass and Sat Parkash who were partners in the earlier firm. The assessee-firm, therefore, did not treat the said amount as its own and it being a firm different from the one to whom the refund had been made could not be held guilty of any concealment. The Tribunal, therefore, rightly deleted the penalty and questions Nos. 1 and 3 are accordingly answered against the Revenue and in favour of the assessee." 7. Looking into the aforesaid ratio of the judgment of the Hon'ble Supreme Court, it appears that the case of the petitioner is fully covered as there is no penalty or assessment against the petitioner in view of the subsequent orders passed by the competent authority in the said statute. 8. The argument which has been adopted by Mr. Sahay, learned counsel for the Income Tax Department relying on two judgments of the Hon'ble Supreme Court in the case of Sasi Enterprises v. Assistant Commissioner of Income Tax, reported in [(2014) 5 SCC 139] and in the case of U.S. Technologies International Pvt. Ltd. v. Commissioner of Income Tax, reported in (2023 SCC OnLine SC 387) has b....
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.... the said proviso and this aspect of the matter has already been considered by the Hon'ble Supreme Court in the case of Sasi Enterprises(supra) on which much force has been made by the learned counsel for the Income Tax Department and the said aspect was discussed in paragraph no. 25 of the said judgment which is quoted as under: "25. Section 276-CC applies to situations where an assessee has failed to file a return of income as required under Section 139 of the Act or in response to notices issued to the assessee under Section 142 or Section 148 of the Act. The proviso to Section 276-CC gives some relief to genuine assessees. The proviso to Section 276- CC gives further time till the end of the assessment year to furnish return to avoid prosecution. In other words, even though the due date would be 31st August of the assessment year as per Section 139(1) of the Act, an assessee gets further seven months' time to complete and file the return and such a return though belated, may not attract prosecution of the assessee. Similarly, the proviso in clause (ii) (b) to Section 276-CC also provides that if the tax payable determined by regular assessment as reduced by advance....