JUDGMENT/ORDER :

Prayer: Petition filed under Section 482 of Cr.P.C. to call for the records and quash the prosecution in E.O.C.C.No.82 of 2017, on the file of the learned Additional Chief Metropolitan Magistrate (Economic Offences)-II, Egmore at Allikulam, Chennai.

1. This petition has been filed to quash the proceedings in E.O.C.C.No.82 of 2017 for the offences under Section 276C(2) of the Income Tax Act, pending on the file of the learned Additional Chief Metropolitan Magistrate (Economic Offences)-II, Egmore at Allikulam, Chennai. The trial Court took cognizance of the offence on the basis of the complaint filed by the Respondent.

2. The brief fact of the Petitioner's case is as follows:

2.a. The Petitioner/accused while filing the Return of Income for the financial year 2012-13 (Assessment year 2013-14) has shown tax payable of Rs.2,22,23,010/- and paid tax of Rs.10,000,000/- only as self assessment tax. The assessment under Section 143(3) of the IT Act, 1961 for the Assessment year 2013-14 was completed by accepting the income returned by the assessee vide order dated 31.03.2016. Since the assessee has paid only Rs.10,000,000/- towards undisputed tax and still remaining amount has not been paid, the prosecution has been launched. Show cause Notice also issued before the initiation of the prosecution on 16.09.2016. Reply given by the accused on 24.09.2016 is general in nature. Hence prosecution has been launched. Challenging the prosecution the present petition has been filed.

3.a. Learned Counsel appearing for the Petitioner mainly contended that it is not the case of the department that the petitioner/accused has suppressed the real income or undisclosed income was unearthed either under inspection or search. The return submitted by the accused was accepted and the assessment order of the year 2013-14 was also confirmed. He has paid part of the tax amount which was accepted by the department. The Assessment Order dated 31.03.2016 also confirmed the income. Thereafter an immovable property of the petitioner was attached on 13.05.2016. It is his further contention that he has paid tax with great difficulty and still he has to pay only Rs.71 lakhs. In the reply notice he has categorically explained the circumstances which forced him delayed the payment and he has also stated that as the immovable property has already attached, he could not mobilise the funds by sale of the property and he has also expressed the various circumstances which lead to loss in his business. The reply notice has not been considered properly. The complainant has mechanically filed prosecution without applying his mind. It is his contention that mere delayed payment of tax without an intention to evade tax will not constitute offence under Section 276(C)(2) of the Income Tax Act.

3.b. It is also his contention that now out of total due substantial tax has been paid only remaining Rs.7,62,945/-alone to be paid and the property has already been attached. Recovery also can be made by the department with interest. Therefore, it is his contention that as there is no intention on the part of the petitioner, in any manner to willfully evade the payment of tax. Therefore offence under Section 276C(2) will not be attracted. Hence submitted that the complaint is bereft of details as to the averments that the petitioner has made any willful attempt to evade any tax or penalty or interest. Therefore submitted that the entire prosecution is nothing but abuse of process of law. Hence prayed for quashment of the proceedings.

4. In support of his contention he relied upon the following judgments:

1. Tamil Nadu Housing Board vs. Collector of Central Excise, Madras and Ors. [1995 Supp(1) SCC 50]

2. Prem Dass vs. Income Tax Officer [2001-1-LW(Crl) 471]

3. Vijaychandra Chandulal Shah vs. State of Gujarat and Ors.[[1995] 213 ITR 307 (Guj) = MANU/GJ/0054/1993]

4. Union of India (UOI) vs. Jiwal Lal Chironji Lal and Ors. [MANU/ MP/ 0143/2010]

5. Sayamull Surana vs. Income Tax Office