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2022 Supreme(Raj) 374
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
DINESH MEHTA, J.
Ashish Agarwal S/o Shri Hariram Agarwal – Appellant
Versus
Income Tax Department, through Assistant Income Commissioner - Respondents
S.B. Criminal Misc(Pet.) No. 3106 of 2022
Decided on : 04-08-2022
Advocate Appeared:
For the Appellant : Mr. Mahaveer Bishnoi, Mr. Jayram Saran
For the Respondent: Mr. K.K. Bissa
Headnote:
Code of Criminal Procedure, 1973 - Section 397, 482 - Income-Tax Act, 1961 - Section 153-A, 279(1), 276-CC - Search and seizure - File return of income-tax - Assessment Year - Delay of 72 days in filing the return – Held, In view of aforesaid discrepancy and considering that not only notice issued to petitioner before granting prosecution sanction, even complaint filed by Department alleges delay in filing return, while eliciting prosecution under Section 276-CC (ii) of Act of 1961, Court is of view that cognizance, which has been taken for evasion of tax is ex-facie erroneous and deserves to be quashed and set aside - The order granting prosecution sanction has neither been challenged in present petition nor can same be permitted to be questioned before this Court in its jurisdiction under Section 482 of Code. Because, act of granting prosecution sanction is an administrative or statutory exercise of powers – Petition allowed.
JUDGMENT :
1. Instant petition and those mentioned in the Schedule, involve identical issue of law and facts, hence all of them are being decided by this common order. The facts of S.B. Criminal Misc. Petition No.3106/2022 (Ashosh Agarwal Vs. Income Tax Department) are being taken into consideration for the purpose of disposal of these cases.
2. The petitioner is an assessee under the Income-Tax Act, 1961 (hereinafter referred to as ‘the Act of 1961’) and is having Permanent Account No.AGAPA5596A.
3. A search and seizure was conducted at petitioner’s business and residential premises on 24.02.2016, in furtherance whereof, a notice under Section 153-A of the Act of 1961, requiring him to file return of income-tax within 30 days came to be issued.
4. It is the case of the petitioner that on receipt of the notice, the petitioner had sent a letter dated 28.07.2016 and requested the Dy. Commissioner, Income-tax to provide copies of the statements recorded during the course of search and other relevant documents so that a return as demanded under Section 153-A of the Act of 1961 can be filed.
5. Later on, the petitioner filed the return of income on 04.07.2016.
6. The Commissioner, Income-tax (Central) thereafter issued a show cause notice dated 28.02.2017 under Section 279(1) of the Act of 1961 and asked him why not prosecution under Section 276-CC of the Act of 1961, for failure to file return of Income-tax in time be launched against him.
7. In response to the show cause notice aforesaid, the petitioner filed a reply and explained the delay of 72 days inter alia contending that there was no intentional delay in filing the return and the petitioner was prevented by sufficient cause, as the requisite documents were not supplied to him despite being demanded. It was also stated that the demand of tax is meagre. And hence, the prosecution sanction be not granted.
8. The petitioner did not hear anything until he came to receive summons issued by the Additional Chief Metropolitan Magistrate, Jodhpur Metro (hereinafter referred to as ‘the trial Court’) requiring the petitioner to appear on 28.05.2022.
9. On inquiry being made, the petitioner came to know that the trial Court had taken cognizance of offence under Section 276-CC of the Act of 1961 prima facie finding to be a case made out against the petitioner.
10. The petitioner has assailed the aforesaid order dated 21.02.2018, whereby cognizance has been taken against him so also the proceedings pending before the trial Court.
11. Learned counsel for the petitioner highlighted the fact that the petitioner had furnished his return of income for the Assessment Year 2013-14 and it was only pursuant to search and seizure, which was conducted at petitioner’s premises on 24.02.2016, the Income-Tax Department issued a notice under Section 153-A of the Act of 1961 to the petitioner and asked him to furnish return (revised return).
12. Mr. Bishnoi, learned counsel, invited Court’s attention towards the complaint submitted by the Income-Tax Department and pointed out that the department had prayed for petitioner’s prosecution for late filing of return, as provided under Section 276-CC(ii) of the Act of 1961, whereas the trial Court has treated it to be a case of evasion of tax and has taken cognizance as such. He argued that the order taking cognizance is mechanical and without application of mind to the facts of the case.
13. He navigated the Court through the short order by which cognizance has been taken and submitted that the trial Court has found the case to be a case of evasion of income-tax, whereas the facts pleaded were otherwise. While submitting that the return of income-tax was ultimately filed with a small delay of 72 days, learned counsel emphasized that no additional demand was raised against the petitioner let-alone penalty, and, therefore, it cannot be said that the petitioner had, in any manner, evaded income-tax.
14. He argued that since the departmental authorities themselves have found t
