Bombay High Court
Dhananjay Venkatesh Kamath vs Income Tax Department Through ... on 10 October, 2023
Bench: S. V. Kotwal
1/5 13-WP-915-23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.915 OF 2023
Dhananjay Venkatesh Kamath .... Petitioner
versus
Income Tax Department & Anr. .... Respondents
.......
• Mr. Prakash Pandit i/b. Ratnesh M. Dube, Advocate for
Petitioner.
• Mr. Akhileshwar Sharma, Advocate for Respondent Nos.1 & 2.
• Mr. Arfan Sait, APP for the State/Respondent.
CORAM : SARANG V. KOTWAL, J.
DATE : 10th OCTOBER, 2023
P.C. :
1. The Petitioner has challenged the order dated
01/10/2019 passed by Additional Chief Metropolitan
Magistrate, 38th Court, in CC No.280/SW/2019. By the
impugned order, the learned Magistrate had issued process
against the Petitioner for commission of offence punishable u/s
276C (2) of the Income Tax Act, 1961.
Nesarikar
::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 23:47:52 :::
2/5 13-WP-915-23.odt
2. Heard Mr. Prakash Pandit, learned counsel for the
Petitioner, Mr. Akhileshwar Sharma, learned counsel for
Respondent Nos.1 & 2 and Mr. Arfan Sait, learned APP for the
State.
3. The complaint is filed by the Respondent No.1. It is
mentioned in the complaint that the Petitioner is an individual
and is assessed to income tax. For the assessment year 2017 -
2018 he had declared a total income of Rs.26,60,560/-. On the
date of filing of the return of income tax i.e. on 06/11/2017 the
tax payable with interest after giving credit of tax deducted at
source and advance tax was Rs.4,89,600/-. The Petitioner did
not make the payment before filing the return of income tax on
06/11/2017. Therefore, the show cause notice dated
22/11/2018 was issued to the Petitioner asking him to show
cause as to why action should not be initiated against him u/s
276 C(2) of the Income Tax Act, 1961. The complaint itself
mentions that the Petitioner has subsequently paid a total
::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 23:47:52 :::
3/5 13-WP-915-23.odt
amount of Rs.5,97,882/- towards self assessment tax and
interest for the assessment year 2017 - 2018.
4. Learned counsel for the Petitioner submitted that the
show cause notice was dated 22/11/2018 and the Petitioner has
made payment of the tax with penalty on 03/12/2018. The fact
that he has paid the total amount of tax along with interest is
mentioned in the complaint itself. The complaint was filed
subsequently in March 2019. This shows that there was no
willful evasion of tax by the present Petitioner and therefore no
offence punishable u/s 276 C(2) is made out. He relied on the
judgment of High Court of Karnataka in the case of Vyalikaval
House Building Co. Operative Society Ltd. Vs. Income Tax
Department, as reported in 2019 SCC OnLine Kar 3566.
In that case the Petitioner had paid the tax belatedly
after the coercive steps were taken by the Income Tax
Department. It was held that, even then it did not lead to the
inference that the delay in making payment was an attempt to
::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 23:47:52 :::
4/5 13-WP-915-23.odt
evade tax declared in the returns filed by him. Delayed
payments, under the provisions of the Act, may call for
imposition of penalty or interest but by no stretch of imagination
the delay in payment could be construed as an attempt to evade
tax so as to entail prosecution of the Petitioners for the alleged
offence under section 276C(2) of the Act.
5. Learned counsel for the Respondent Nos.1 and 2
submitted that the fact that the Petitioner has made the payment
belatedly shows that all the requirements of section 276(C)(2)
are made out.
6. I have considered these submissions. The observations
of the Karnataka High Court in the aforesaid case support the
contention of the Petitioner.
7. Arguable points are raised. Therefore, the matter
deserves to be admitted.
::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 23:47:52 :::
5/5 13-WP-915-23.odt
8. Hence, the following order :
ORDER
(i) Admit.
(ii) Till the next date, there shall be ad-interim relief
in terms of prayer clause (C).
(SARANG V. KOTWAL, J.)
