IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 20.10.2023 Pronounced on : 09.11.2023 CORAM:

THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN CRL.O.P.No.28572 of 2018 and Crl.M.P.No.16630 of 2018 R.P.Darrmalingam ... Petitioner Vs.

Assistant Commissioner of Income Tax, Central Circle, Investigation Wing, Room No.109, 1^st Floor, No.46, M.G.Road, Nungambakkam, Chennai 600 034 ... Respondent PRAYER: Criminal Original petition is filed under Section 482 of Criminal Procedure Code, to call for the records relating to EOCC.No.574 of 2017 on the file of the Additional Chief Metropolitan Magistrate, (Economic Offences), Egmore, Chennai and to quash the same.

For Petitioner : Mr.R.Sivaraman for Mr.M.Vivekanandan For Respondent : Mrs.M.Sheela, Special Public Prosecutor for Income Tax

ORDER

This criminal original petition has been filed to quash the proceedings in EOCC.No.574 of 2017 on the file of the Additional Chief Metropolitan Magistrate, (Economic Offences), Egmore, Chennai taken cognizance for the offence punishable under Section 276CC of Income Tax Act, 1961.

2. The respondent lodged complaint for the offences under Section

276CC of Income Tax Act, 1961 for non filing of the income tax return for the assessment year 2012-2013. The crux of the complaint is that the accused is an assessee on the file of the respondent. During the search on 03.09.2013, it was detected that the accused did not file his return of income for the assessment year 2012-2013. Therefore, he was issued notice under Section 153A of Income Tax Act dated 29.04.2014 to file return of income tax within 30 days from the date of the said notice. But the petitioner did not file his return of income within the period of 30 days, but filed belatedly on 20.11.2015 by admitting the total income of Rs.2,29,92,150/-. Therefore, the accused was issued show cause notice to show reason for not initiating prosecution. On receipt of the same, the accused replied that the delay was due to books of accounts and other materials were seized by the Income Tax Department. It is difficult for the accused to collect details with regard to 18 assessees in the group. He is aged person and suffering from hypertension and diabetes. Therefore, he was unable to file his return of income. Without being satisfied with the reply submitted by the accused, the respondent filed complaint.

3. The learned counsel for the petitioner would submit that the allegations made in the complaint neither make out any case against the petitioner nor it discloses the ingredients of offence under Section 276CC of Income Tax Act against the petitioner. The trial court had taken cognizance without application of mind and it is against the provisions under Section 153A and 276CC of Income Tax Act. He had submitted his returns as provided under Section 139(1) of the Income Tax Act on 18.04.2013 itself. Therefore, the question of non filing of return does not arise. In fact, the respondent ought to have revealed the said fact that the petitioner already submitted his return of income on 18.04.2013 for the assessment year 2012-2013. If it was disclosed, the sanction would not have been granted to initiate prosecution against the petitioner. Even after receipt of the notice under Section 153A of Income Tax Act, the petitioner could not able to file additional return within the stipulated time of 30 days only for the reason he fell ill. In fact, the additional return filed by the petitioner was duly accepted and order has been passed under Section

143(3) of the Income Tax Act. Therefore, there is no mens rea for non filing of income tax return for the assessment year 2012-2013. As such, the criminal prosecution itself is non est in the eye of law. After accepting the return of income and passed order under Section 143(3) of Income Tax Act dated

30.03.2016.

3.1 He further submitted that the complaint itself is barred by limitation as contemplated under Section 468 of Cr.P.C. According to the respondent, the income tax return