The main legal point established is that in cases of willful failure to furnish income tax return, the prosecution under section 276CC is not sustainable if the tax has been deposited and there are no pending assessment or penalty proceedings.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. Heard Mr. Sumeet Gadodia, the learned counsel for the petitioners, Mr. Santosh Kumar Shukla, the learned counsel for the respondent-State and Mr. R.N. Sahay, the learned Sr S.C appearing for the Income Tax Department.

2. This petition has been filed for quashing of the entire criminal proceeding arising out of Complaint Case being Economic Offences Case No. 4 of 2019, including the order taking cognizance dated 03.05.2019 passed by the learned Special Judge, Economic Offences, Ranchi for the alleged offence under section 276CC read with Section 278B of the Income Tax Act, 1961 and the case is pending in the court of learned Special Judge, Economic Offences, Ranchi.

3. The complaint case is filed alleging therein that O.P. No. 2 is Income Tax Officer posted at Ward 2(1) at Ranchi and the complaint has been filed in his official capacity at the instance of the Principal Commissioner of Income Tax, Ranchi. It is alleged that M/s Maa Diwri Rice Mills Pvt. Ltd having its unit at Poradih, Salgadih, N.H.33, Tamas, PS Tamar, District Ranchi is an assessee under the Income Tax Act, 1961 and it has been found that during the demonetization period from 8.11.2016 to 30.12.2016 an amount of Rs. 20,07,600/- was deposited by the said assessee in case. However it was alleged that the said assessee failed to furnish its return as required under the provision of section 139(1) of the Income Tax Act, 1961. It is further alleged that subsequently notice was issued under section 142 (1) of the Act but even the assessee failed to furnish its return of income nor any explanation was offered by the assessee. It is also alleged that for non- filing of the return within time shows willful intention of the assessee as not to file the return of income tax in time and as such, assessee is liable for prosecution for commission of offence under section 276CC of the Act. It is further alleged that the petitioner nos. 2 and 3 were acting as Principal Officer and Director of the company and they were thus responsible for the conduct of business of the company are also guilty of the offence. There is further allegation that sanction as required under section 279(1) of the Act has been accorded by the Principal Commissioner of Income Tax and the present complaint is being filed by the complainant/O.P. No. 2 for prosecution of the petitioners for alleged offence under section 276CC and 278B of the Income Tax Act.

4. The learned counsel for the petitioners submits that the learned court has been pleased to take cognizance by order dated 03.05.2019 under section 276CC read with section 278B of the Income Tax Act. He submits that the return for the financial year 2016-17 corresponding to the assessment year 2017-18 could not have been filed by the petitioner in terms of section 139 of the Income Tax Act before the due date which was certainly after expiry of the financial year 31.03.2017. He submits that due to unavoidable circumstances the petitioners have not filed the return within due date and accordingly notice was issued to the petitioners under section 142(1) of the Income Tax Act directing the petitioners to file their return and in compliance of the said notice the petitioners have already filed the return for the assessment year 2017-19 contained in Annexure-4. He submits that for the assessment year 2017-18 the petitioner deposited the admitted tax liability of Rs. 4,35,830/- contained in Annexure-5. He submits that section 276CC of the Income Tax is meant for prosecution against a person who willfully fails to furnish the return with due time with an intent to evade the payment of income tax. By way of referring the said Section he submits that provision to demonstrate that a person who fails to file its return by the due date is liable to be punished under the said section and if the amount of tax evaded is exceeding to Rs. 25 lacs, rigorous imprisonment for a term which shall not be less than six months which may even