Calcutta High Court (Appellete Side)
Suraj Khandelwal vs The Ito on 14 July, 2022
14.07.2022
Item No.234.
M/L.
Mithun
Ct.42
CRR 2062 of 2022
Suraj Khandelwal
Vs.
The ITO, WARD 29(4), Kolkata Office of
the Pr. Commissioner of Income Tax-10, Kolkata
Mr. Soumapriya Chowdhury , Adv.
Mr. Debapratim Guha, Adv.
Mr. Aniruddhya Dutta, Adv.
...for the petitioners.
Grievance of the petitioner is that the
petitioner submitted Income Tax Return for the
Assessment year 2018-19 on 31 st December, 2018.
In the Income Tax Return, it is clearly indicated that
the Assessee was liable to pay tax to the tune of
Rs.8,65,830/-. The aforesaid amount was paid to
the account of the Income Tax on 5 th February, 2019
and 13th February, 2019. Thus, before 31 st March,
2019, the petitioner paid entire self-assessed tax
with the Income Tax Department. Subsequently on
16/04/05/2019, the Pr. Commissioner of Income
Tax sent a notice to show-cause as to why a
complaint under Section 276C(2) of the IT Act would
not be initiated against the petitioner for committing
default in payment of tax before filing of Income Tax
Return.
2
Subsequently a complaint was lodged
before the learned Chief Judicial Magistrate at
Alipore and the learned Chief Judicial Magistrate
without applying his mind in a mechanical manner
passed an order of cognizance in a cyclostyle form of
order violating Rule 183 of the Criminal Rules and
Orders.
It is further submitted by the learned
Advocate for the petitioner that Section 276(2) is a
penal provision for evasion of payment of income
tax, penalty or interest under the Income Tax Act.
In the instant case, there was no evasion of
payment of tax.
The issue is no longer res integra because
Hon'ble Karnataka High Court in Crl.P.No. 4891 of
2014 dated 14.06.2019 held as follows:-
"In the instant case, the only circumstance
relied on by the respondent in support of the charge
levelled against the petitioners is that, even though
accused filed the returns, yet, it failed to pay the
self-assessment tax along with the returns. This
circumstance even if accepted as true, the same
does not constitute the offence under Section
276(2) of the Act. The act of filing the returns by
itself cannot be construed as an attempt to evade
tax, rather the submission of the returns would
suggest that petitioner No.1 had voluntarily declared
his intention to pay tax. The act of submitting
returns is not connected with the evasion of tax. It
is only an act which is closely connected with the
intended crime, that can be construed as an act in
attempt of the intended offence. In the backdrop of
this legal principle, the Hon'ble Supreme Court in
the case of Prem Dass-vs-Income Tax Officer cited
supra, has held that a positive act on the part of the
accused is required to be established to bring home
the charge against the accused for the offence under
Section 276C(2) of the Act."
The aforesaid judgment was profitably
relied on by the Hon'ble Madras High Court in
Crl.O.P.(MD) No.13383 of 2019 dated 12th March,
2020 and also in Crl.O.P.No.17906 of 2017 dated
28th January, 2022.
Having gone through the entire materials on
record and the principles laid down in the above-
mentioned decision, this Court finds that the
petitioner has been able to make out an arguable
case and accordingly, the instant revision is
admitted.
Petitioner is directed to issue notice upon
the complainant/opposite party under registered
speed post with acknowledgment due and file
affidavit-of-service within 3 weeks from the date of
this order.
In the meantime, there shall be an order of
stay of all further proceedings in connection with
case No.C/5884/19 pending before the learned
Judicial Magistrate, 1st Court at Alipore for a period
of six weeks.
Liberty to mention.
(Bibek Chaudhuri, J.)
