The court emphasized that the initiation of prosecution under the Income Tax Act is dependent on the validity of the assessment order and penalty, which, when set aside, renders the prosecution unsustainable.

JUDGMENT

(Prayer in Crl.O.P.No.26151 of 2018 : Criminal Original Petition filed under Section 482 of Cr.P.C. praying to call for the entire records in pertaining to the private complaint proceedings in C.C.No.124 of 2018 pending on the file of the learned Judicial Magistrate No.III, Coimbatore and quash the same.)

1. Since, the issue involved in all these criminal original petitions are similar in nature, they are disposed of by way of this Common order.

2. These petitions have been filed seeking quashment of the private complaint proceedings made in C.C.Nos.124 to 136 of 2018 and 278 to 284 of 2018 pending on the file of the Judicial Magistrate No.III, Coimbatore.

3. The respondent filed a complaint under Section 200 of Cr.P.C., before the trial Court alleging that petitioner is an assessee and he is in the business of Real Estate, Motor Car Agency (Skoda), Construction and Finance. He is a Proprietor /Director of M/s. Arputharaj Associates, M/s. Millenium Motors, M/s. SGA Cars Pvt.Ltd., The search was conducted in the residence of the petitioner on 26.02.2015 as contemplated under Section 132 of IT Act. As a result of the search, various undisclosed income and investments made by the petitioner were found. Thereafter, petitioner was issued notice under Section 142(1) of Income Tax Act on 18.03.2016 to file the return of income for the Assessment Year 2015- 2016 within 15 days from the date of service of the notice. Accordingly, petitioner had filed return of his income for the Assessment Year 2015 to 2016 on 29.02.2016 disclosing an income of Rs.92,45,237/- and assessment was completed under Section 143(3)of Income Tax Act on 30.12.2016. However, petitioner did not make any payment as per the demand and filed an appeal before the Commissioner of Income Tax. Therefore, it is the contravention of the provision under Section 276 C (2) of the Income Tax Act for the willful attempt to evade the payment of tax and the penalty under Income Tax Act. Therefore, respondent initiated prosecution under Section 200 and 190(1)(1) of Cr.P.C., for the offence under Section 276 C (2) of Income Tax Act, 1961 read with Section 153(A) of the Income Tax Act, 1961. Respondent also initiated prosecution for the offences under Section 276 C C of the Income Tax Act, 1961 read with Section 153(A) of the Income Tax Act, 1961 for the Assessment Year 2013 to 2014. Petitioner was served with notice under Section 153(A) to file the return of Income Tax. However, petitioner submitted a letter dated 04.08.2015 stating that, he was not able to file the return due to the death of his Accountant and requested for extension of time to file the return of Income. Thereafter, the Office of the Assistant Commissioner of Income Tax issued letter dated 11.08.2015 the petitioner, thereby directed the petitioner to appear on 17.08.2015. However, petitioner did not file return of income, even after receipt of copies of the seized impounded materials. Thereafter, he was issued notice under Section 142(1) of Income Tax, thereby, petitioner was called upon to submit the return of income. However, there was no response and as such, on 01.04.2016, a notice under Section 274 read with Section 271 (F) of Income Tax Act was issued to the petitioner to show cause why penalty under Section 271(F) of Income Tax Act should not be levied. Further, petitioner was also directed to appear before the Assessing Officer. Accordingly, penalty was imposed for non-filing of income tax, as per the show cause notice issued show cause notices under Section 153 A (1)(a) of Income Tax Act. Thereafter, petitioner was issued under Section 276 C C of Income Tax Act. Finally, petitioner filed return of his income after a period of eleven months from the date of issuance of notice under Section 153 A (1) (a) of Income Tax Act. Thus, it is a contravention to the offence under Section 276 C C and theref