Delayed payment of income tax does not amount to evasion of tax or establish culpable mental status for prosecution under Section 276C(2) of the Income Tax Act, provided the full tax amount is eventually paid.

THIS CRIMINAL REVISION PETITION IS FILED U/S.397 R/W.401 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO EXAMINE THE ORDER PASSED BY II ADDITIONAL CIVIL JUDGE AND JMFC, BALLARI ON APPLICATION FILED BY THE PETITIONER UNDER SECTION 227, 239 R/W. SECTION 245(2) OF CR.P.C. IN C.C.NO.246/2015 DATED 29TH FEBRUARY, 2024 FOR THE OFFENCE U/S.276 C OF INCOME TAX ACT AND CONSEQUENTLY SET ASIDE VIDE ANNEXURE-G BY ALLOWING THIS PETITION AND ETC.

THIS PETITION COMING ON FOR DICTATING ORDERS, THIS DAY ORDER WAS MADE THEREIN AS UNDER:

CORAM: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

ORAL ORDER

This criminal revision petition is filed under Section 397 of Code of Criminal Procedure (Cr.P.C.)/438 of the Bharatiya Nagarika Suraksha Sanhita, 2023 (BNSS), praying to set aside the order as per the prayer made in the petition as follows:

“PRAYER

Wherefore, the petitioner prays that this honourable court be pleased to:

A. Examine the order passed by II Addl. Civil Judge & JMFC, Ballari on application filed by the petitioner under Section 227 /239 R/W. Section 245(2) of Cr.P.C. in CC.No.246/2015 dated 29th February, 2024 for the offence under Section 276 C of Income Tax Act and consequently set aside vide Annexure – G by allowing this Petition,

B. To pass such other orders as may be deemed expedient in the circumstances of the case and in the interest of justice.

2. The respondent/department herein has initiated criminal proceedings under Section 276C (2) of the Income Tax Act, 1961 (IT Act, 1961) before the II Additional Civil Judge and JMFC, Ballari, on the ground that the petitioner/assessee should have paid self-assessment tax of Rs.33,77,654/-, which is her admitted income in her income tax returns filed for the assessment year 2009-10, before filing the income tax returns as per Section 140A of the IT Act, 1961. After scrutinizing the assessment under Section 143(2) of the IT Act, 1961, the tax payable was re-determined at Rs.51,90,530/- and the same was communicated to the petitioner/assessee, but the petitioner failed to respond to the show cause notice. Hence, the criminal proceedings were initiated for the offence under Section 276C (2) of the IT Act, 1961.

3. Thereafter, the petitioner/assessee has paid the differential amount of tax and rectified the mistake and the respondent/department had also issued a certificate of clearance stating that the petitioner has paid entire tax amount and no tax was due for the assessment year 2009-10; therefore, the complainant/petitioner has filed an application for discharge under Sections 227 /239 read with Section 245(2) of the Cr.P.C., but the same was dismissed. Hence, the petitioner/assessee has preferred this criminal revision petition.

4. Heard the arguments from both the learned counsel appearing for the parties and perused the materials available at this stage.

5. Learned counsel appearing on behalf of the petitioner/assessee submitted that the petitioner/assessee has paid the balance tax amount as determined by the respondent/department and has also issued a certificate of clearance on 13.04.2022 and no tax amount was due so as to proceed with the trial. Hence, prays to quash the proceedings. Further submitted that there is no culpable mental status on the part of the petitioner/assessee to evade of tax. Therefore, when the petitioner/assessee has paid entire tax amount as determined by the respondent/department after the petitioner/assessee had determined herself, there is no question of trial on culpable mental status. Therefore, pra