JUDGMENT

Harnaresh Singh Gill, J.

Prayer in this petition is for quashing the complaint bearing No.8983 dated 04.12.2014 (Annexure P-1), under Section 276(C)(2) read with section 278B of the INCOME TAX ACT , 1961 (for short 'the Act'), along with all the consequential proceedings arising therefrom, including the summoning order dated 22.12.2014 (Annexure P-2) passed by the learned Chief Judicial Magistrate, Chandigarh.

2. Petitioner No.1 is a registered firm, of which petitioners No.2 to 4 are the Directors. The dispute is with regard to non-payment of the tax, in time, which was self-assessed by petitioner No.1, while filing the Income Tax Return for the Assessment Year 2011-12.

3. On 29.09.2011, petitioner No.1 had filed Income Tax Returns for the Assessment Year 2011-12, thereby declaring a Gross Total Income of Rs.6,72,05,864/- and the amount of aggregate tax was shown as Rs.1,36,20,887/-. Thereafter, the said return was revised on 22.10.2012 and the amount of aggregate tax was shown as Rs.1,50,81,728/-. However, the said tax amount was not paid in time. Thereafter, for non-payment of the tax amount, a notice dated 21.10.2014 (Annexure P-4) was issued to the petitioners, calling upon them to show cause as to why prosecution under section 276(C)(2) of the INCOME TAX ACT be not initiated against them. The said notice was replied to by the petitioners on 07.11.2014 (Annexure P-5), whereby they took a specific a stand for non-payment of the tax amount in time.

4. Dissatisfied with the reply filed by the petitioners, sanction to prosecute the petitioners under Section 276(C)(2) along with other relevant Sections of the Act, was granted by the Competent Authority on 18.11.2014 (Annexure P-3). Accordingly, the complaint in question was filed on 04.12.2014 (Annexure P-1), wherein the summoning order was passed on 22.12.2014 (Annexure P-2).

5. Learned Senior counsel for the petitioners vehemently argues that the petitioners are being prosecuted for making an attempt to evade the tax, which was self-assessed by them, while filing the Income Tax Returns for the Assessment Year 2011-12, whereas there was no evasion at all on their part; that the tax amount was acknowledged/shown and admitted in the Income Tax Returns itself, though there was a delay in making the said tax payment; that against the said delayed payment of the tax amount, a penalty was levied by the respondent-Department concerned. He further submits that the entire dues i.e. the tax amount and the interest thereof has already been cleared. He, thus, argues that once the respondent-Department has opted for levy the penalty, then the filing of the criminal complaint is nothing, but an abuse of the process of law, as for the same cause of action, two recourses cannot resorted to by the respondent-Department.

6. Learned Senior counsel for the petitioners further submits that prosecution under Section 276(C)(2) read with other Sections of the Act, can only be launched, if there is a willful evasion/attempt of either the tax, the penalty or the interest amount, apparent on the face of the record, whereas in the present case, neither of the said circumstance exists.

7. While relying upon the judgment delivered by the Karnataka High Court in Confident Projects (India) (P.) Ltd. v. Income Tax Department, Circle 2(1)(1), Bengaluru, (2021) 124 Taxmann.com 36 (Karnataka), learned Senior counsel for the petitioners argues that the delayed payment of the tax amount would not amount to evasion of the tax and moreso, when the tax has already been acknowledged/shown and admitted at the time of filing of the Income Tax Returns.

8. Learned Senior counsel for the petitioners further submits that against the aforesaid judgment of the Karnataka High Court, the respondent therein filed Special Leave to Appeal No.8316 of 2021, wh