TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 958
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....tend that, even subsequently, he has not deposited it. 3. That is why, not only there is a default but also there is a willful default as contemplated as per the provision of 276C (2) of the said Act. 4. As against this, it is the contention of the Assessee that there is no willful default and in fact he has paid the amount of Income Tax due as per self assessment on 16.01.2023 (though not within initial period). 5. After initial correspondence, as required as per Income Tax Act and after getting sanction, complaint is filed in the Court of JMFC, Pune against the Assessee. It is numbered as Summary Criminal Case No. 149 497/2024. The learned Magistrate was pleased to issue process for the offence punishable under Section 276C (2) of the said Act. This order is under challenge by way of this Petition. 6. I have heard learned Advocate for the Petitioner and learned Advocate Shri Ashok Kotangle for Respondents. 7. The case put up by both the parties from the pleadings in nutshell is as follows:- a) The assessee runs the business of stone crushing on partnership business in the name and style as 'Shree Ambika Stone Crusher' and also engaged in the business of ma....
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....imself, the assessee has utilised revenue receipts for payment of purposes other than income tax dues. n) It is the case of the department that assessee was liable to pay tax by way of advance tax in 4 installments upto 15.03.2022 and balance 31.03.2022. o) The department was not satisfied with the explanation and Principal Commissioner of Income Tax (Central), Pune granted sanction under Section 279(1) of Income Tax Act on 18.09.2024 to prosecute the assessee for violation of the provisions of Section 140 A punishable under Section 276C (2) of Income Tax Act (Page 66). p) On this background, complaint is filed before JMFC, Pune. Ld. Magistrate passed following order on 05.12.2024 - (Ref. Memo). Submissions 8. Learned Advocate for the Petitioner made following submissions:- (i) Even if the averments in the complaint are taken as it is, though there is default in paying self assessment tax alongwith the return, it cannot be said that there is a willful attempt to evade tax. (ii) Though, the tax is not paid on 05.11.2022, it was paid subsequently on 16.01.2023. This itself shows that the assessee is having desire to pay the tax and n....
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.... reliance on the observations in the case of Nayan Jayantilal Balu vs. Union of India & Ors. (Criminal Writ Petition No. 2698 of 2021 dated 7.12.2021) under Section 401, wherein the Division Bench declined to interfere in the order granting sanction. FINDINGS 10. There is no dispute that the assessee has failed to deposit self-assessment tax before or atleast along with the return, he deposited it subsequently. The relevant dates are as follows:- a) Date of submission of return 5.11.2022 b) Date on which self assessment tax was supposed to be paid On or before 5.11.2022 c) Date on which tax is actually deposited 16.01.2023 d) Date of proposal to get sanction 26.07.2024 e) Date of show cause notice 12.08.2024 f) Date of online submission 16.08.2024 g) Date of sanction 18.09.2024 h) Date of impugned order 05.12.2024 11. There is no dispute that assessee was liable to pay tax under Section 140-A of Income Tax Act and liable to submit return of income under Section 139 of the Income Tax Act. About the date of submitting return and date of paying tax, after due date is also not in dispute. When the Court is....
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....x. When there are different provisions in Income Tax Act about filing of prosecution, the observations in one judgment may be applicable to another case only when both these cases deal with similar contingencies. So to say observations made "in a case of willful attempt to evade payment of tax" will be relevant while dealing with present controversy. So to say if there is 'willful evasion of tax' (not simply payment of tax) the observations may not be fully applicable while dealing with present case. Similarly, the provisions of 276-B of the said Act stands on different footing. The title of Section is 'Failure to pay tax to the credit of Central Government under Chapter XII - D or XVII-B'. 16. As the title of Section 276(C) indicates, the word 'failure' is absent. There is a difference in between 'failure' and 'evasion'. Furthermore, the evasion should not only be simple evasion but it should be willful evasion. Section 276-B will be applicable when the tax deducted at source is not credited to Government. This is one of the contingency. 'Failure to credit ' itself is sufficient. It need not be willful. Because once you have deducted a tax from the income of other person (who i....