Madras High Court
Mrs.Noorjahan vs The Deputy Commissioner Of Income ... on 6 July, 2021
Crl.O.P.Nos.2616 & 2781 of 2020
& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 21.04.2022 Pronounced on : 26.04.2022
Coram::
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Criminal Original Petition Nos.2616 & 2781 of 2020
& Crl.M.P.Nos.1573, 1574, 1658 & 1660 of 2020
Mrs.Noorjahan, ... Petitioner/Accused
in Crl.O.P.Nos.2616 of 2020
/versus/
The Deputy Commissioner of Income Tax,
Corporate Circule – 1 [1],
Room No.611, Wanaparthy Block,
No.121, M.G.Road, Nungambakkam,
Chennai – 600 034. ... Respondent/Complainant
in Crl.O.P.No.2616 of 2020
Prayer:- This Criminal Original Petition is filed under Section 482 of Cr.P.C.,
pleased to call for and quash the complaint in E.O.C.C.No.132 of 2019 on the file
of the Additional Chief Metropolitan Magistrate, E.O-1, Egmore, Chennai – 8 and
pass orders.
For Petitioner : Mr.K.Chozhan
For Respondent : Mr.L.Murali Krishnan
Special Public Prosecutor for Tax.
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Crl.O.P.Nos.2616 & 2781 of 2020
& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
1. M/s.AMK Solutions Private Ltd.,
PAN No.AAHCA2131L,
Rep. by its Managing Director Mr.Mohammed Zahirudeen,
Director-M/s.AMK Solutions Private Limited,
No.254, AMK Villa, Anna Street,
Gerumgambakkam, Porur,
Chennai – 600 122.
2. Mr.Mohammed Zahirudeen,
Director-M/s.AMK Solutions Private Limited,
No.254, AMK Villa, Anna Street,
Gerumgambakkam, Porur,
Chennai -600 122. ... Petitioners/1st & 3rd Accused
in Crl.O.P.No.2781 of 2020
/versus/
The Deputy Commissioner of Income Tax,
Corporate Circule – 1 [1],
Room No.611, Wanaparthy Block,
No.121, M.G.Road, Nungambakkam,
Chennai – 600 034. ... Respondent/Complainant
in Crl.O.P.No.2781 of 2020
Prayer:- This Criminal Original Petition is filed under Section 482 of Cr.P.C.,
pleased to call for and quash the complaint in E.O.C.C.No.132 of 2019 on the file
of the Additional Chief Metropolitan Magistrate, E.O-1, Egmore, Chennai – 8 and
pass orders.
For Petitioners : Mr.K.Chozhan
For Respondent : Mr.L.Murali Krishnan
Special Public Prosecutor for Tax.
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Crl.O.P.Nos.2616 & 2781 of 2020
& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
COMMON ORDER
The petitioner in Crl.O.P.No.2616 of 2020 is the Director of
M/s.AMK Solutions Pvt Limited and the petitioners in Crl.O.P No.2781 of 2020 is
the Company and its Directors.
2. Complaint for prosecution filed by the Income Tax Department
alleging that, the petitioners have wilfully attempted to evade payment of Income
Tax for the Assessment Year 2017-2018 and thereby, committed offence under
Section 276 C (2) of the Income Tax Act, 1961. The said complaint has being
taken on file by the Learned Additional Chief Metropolitan Magistrate Court in
E.O.C.C.132/2019. Stating that, the tax payable by the petitioners for the
Assessment Year 2017-18 was paid well before the issuance of show cause notice
and same was intimated to the authorities, without applying the mind and not
considering the payment of tax with interest, sanction to prosecute granted and
the private complaint came to be filed suppressing the factum of payment of tax
much prior to sanction to prosecute. Hence, these two petitions are filed to quash
the complaint on the ground that, there is a lack of ingredient to prosecute the
petitioners under section 276 C (2), besides suppression of fact and non-
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Crl.O.P.Nos.2616 & 2781 of 2020
& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
application of mind.
3. The un-controverted facts of the case is that, M/s.AMK Solutions
Pvt Limited is an Income Tax Assessee having PAN No:AAHCA2131L. For the
Assessment Year 2017-2018 they have filed self assessment return on 31/10/2017
declaring the income and tax payable. However, the tax admitted to be payable
not remitted by the assessee along with the returns, which is the requirement of the
law under Section 140 A of Income Tax Act, 1961. The assessee, after a delay of
4 ½ months, has remitted a sum of Rs.6,85,462/- towards the tax and interest
payable. While so, the sanction to prosecute issued by the Principal Commissioner
of Income Tax-1, Chennai and based on the sanction to prosecute, complaint filed
on 28/07/2019.
4. The Learned Counsel for the petitioners submitted that, to attract
offence under section 276 C (2) of the Income Tax Act, two ingredients are
required. They are (i). culpable mental state to evade Tax and (ii) Attempt to evade
tax. In the case of the petitioners, they never had the intention to evade tax. In
fact, they have disclosed their income and tax payable while filing the returns.
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Crl.O.P.Nos.2616 & 2781 of 2020
& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
Due to financial constraints and other reasons they were not able to pay the tax
along with the returns. Hence, after filing the returns within time disclosing the
income and tax payable, the tax payable was remitted later, but much before
initiating any proceedings for prosecution. Therefore, there is no evasion of tax
or attempt for evasion of tax. In the absence of core necessary ingredients to
prosecute, the criminal complaint is filed based on the sanction to prosecute issued
by the Principal Commissioner, who has omitted to consider the fact that, the tax
payable remitted much prior to issuance of show cause notice. In the complaint
suppressing the payment of tax, it is falsely alleged that, the petitioners did not pay
the tax in spite of sufficient opportunities given and the petitioners are wilfully
evading the payment of tax due to the Income Tax Department.
5. In support of the quash petition, the Learned counsel for the
petitioners relied on the following judgments:-
1. Premdass -vs- Income Tax Officer reported in
(1999) 5 SCC 241.
2. Sushil Kumar Saboo -vs- State of Bihar
reported in (2011) 336 ITR 202 (Patna).
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& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
3. Vyalikaval House Building Co-operative
Society Ltd., -vs- Income Tax Department, Central
Circle, Bangalore reported in (2020) 428 ITR 89
(Karnataka).
4. Ganga Devi Somani -vs- State of Gujarat
(R/Cr.Ma.No.22512 of 2019 dated 06.07.2021.
5. Inland Builders Pvt Ltd -vs- The Deputy
Commissioner Income Tax in Crl.O.P.No.6244 of 2020
dated 25.08.2021.
6. S.P.Velayutham -vs- Assistant Commissioner
of Income Tax reported in (2022) 135 Taxmann.com 43
(Madras).
6. Per contra, the Learned Special Public Prosecutor for the Income
Tax Department submitted that, in case of self assessment, Section 140-A
mandates the assessee to submit the returns along with the proof of payment of
tax. As per Sub-Section (3) of Section 140 A, any failure on the part of the
assessee to pay the tax in whole or in part along with the returns, will be deemed
to be a default and without prejudice to the other consequences, the assessee shall
be liable for prosecution. Further, under Section 278 E of the Act, there is a
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& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
statutory presumption there is a culpable mental state to evade tax. To the reverse
burden is on the assessee, therefore the factual aspect of non-existence of culpable
mental state is matter for trial. The complaint cannot be quashed invoking Section
482 of Cr.P.C.
7. To buttress his submissions, the Learned Counsel for the
Respondent-Income Tax Department relied upon the following judgments:
1. Prakash Nath Khanna -vs- Commissioner of
Income Tax reported in (2004) 135 Taxman 327 (SC).
2. Madhumilan Syntex Limited & Others -vs-
Union of India & another reported in (2007) 11 SCC
3. Sasi Enterprises -vs- Assistant Commissioner
of Income Tax reported in (2014) 5 SCC 139.
4. M/s.Neeharika Infrastructure Pvt Ltd -vs-
State of Maharashtra and another reported in (2021)
SCC Online SC 315.
5. Arun Arya -vs- Income Tax Officer in
CRMC.No.205 of 2015.
6. Mrs.Sujatha Venkateshwara -vs- The
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Crl.O.P.Nos.2616 & 2781 of 2020
& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
Assistant Commissioner of Income Tax in
Crl.R.C.No.615 of 2011.
7. Shri.Raman Krishna Kumar -vs- Deputy
Commissioner of Income Tax in Crl.O.P.No.25561 of
2016.
8. Oriental Enterprises & others -vs- The
Assistant Commissioner of Income Tax in
Crl.O.P.No.26330 of 2017.
8. Section 140-A, which speaks about payment of tax under Self
Assessment Scheme reads as below:-
140A. (1) Where any tax is payable on the basis of any
return required to be furnished under section 115WD or
section 115WH or section 139 or section 142 or section 148
or section 153A or, as the case may be, section 158BC, after
taking into account,—
(i) the amount of tax, if any, already paid under any
provision of this Act;
(ii) any tax deducted or collected at source;
[(iia) any relief of tax claimed under section 89;]
(iii) any relief of tax or deduction of tax claimed under
section 90 or section 91 on account of tax paid in a country
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& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
outside India;
(iv) any relief of tax claimed under section 90A on account of
tax paid in any specified territory outside India referred to in
that section; [***]
(v) any tax credit claimed to be set off in accordance with the
provisions of section 115JAA or [section 115JD; and]
[(vi) any tax or interest payable according to the provisions
of sub-section (2) of section 191,]
the assessee shall be liable to pay such tax together with
interest and fee payable under any provision of this Act for
any delay in furnishing the return or any default or delay in
payment of advance tax, before furnishing the return and the
return shall be accompanied by proof of payment of such tax,
interest and fee73.
Explanation.—Where the amount paid by the assessee under
this sub-section falls short of the aggregate of the tax, interest
and fee as aforesaid, the amount so paid shall first be
adjusted towards the fee payable and thereafter towards the
interest payable as aforesaid and the balance, if any, shall be
adjusted towards the tax payable.
(1A) For the purposes of sub-section (1), interest payable,—
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& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
(i) under section 234A shall be computed on the amount of
the tax on the total income as declared in the return as
reduced by the amount of,—
(a) advance tax, if any, paid;
(b) any tax deducted or collected at source;
[(ba) any relief of tax claimed under section
89;]
(c) any relief of tax or deduction of tax claimed
under section 90 or section 91 on account of tax
paid in a country outside India;
(d) any relief of tax claimed under section 90A
on account of tax paid in any specified territory
outside India referred to in that section; and
(e) any tax credit claimed to be set off in
accordance with the provisions of section
115JAA or section 115JD;
(ii) under section 115WK shall be computed on the amount of
tax on the value of the fringe benefits as declared in the
return as reduced by the advance tax, paid, if any.
(1B) For the purposes of sub-section (1), interest payable
under section 234B shall be computed on an amount equal to
the assessed tax or, as the case may be, on the amount by
which the advance tax paid falls short of the assessed tax.
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& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
Explanation.—For the purposes of this sub-section, "assessed
tax" means the tax on the total income as declared in the
return as reduced by the amount of,—
(i) tax deducted or collected at source, in accordance with
the provisions of Chapter XVII, on any income which is
subject to such deduction or collection and which is taken
into account in computing such total income;
[(ia) any relief of tax claimed under section 89;]
(ii) any relief of tax or deduction of tax claimed under
section 90 or section 91 on account of tax paid in a country
outside India;
(iii) any relief of tax claimed under section 90A on account
of tax paid in any specified territory outside India referred to
in that section; and
(iv) any tax credit claimed to be set off in accordance with
the provisions of section 115JAA or section 115JD.
(2) After a regular assessment under section 115WE or
section 115WF or section 143 or section 144 or an
assessment under section 153A or section 158BC has been
made, any amount paid under sub-section (1) shall be deemed
to have been paid towards such regular assessment or
assessment, as the case may be.
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& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
(3) If any assessee fails to pay the whole or any part of such
tax, interest or fee in accordance with the provisions of sub-
section (1), he shall, without prejudice to any other
consequences which he may incur, be deemed to be an
assessee in default in respect of the tax, interest or fee
remaining unpaid, and all the provisions of this Act shall
apply accordingly.
(4) The provisions of this section as they stood immediately
before their amendment by the Direct Tax Laws (Amendment)
Act, 1987 (4 of 1988), shall apply to and in relation to any
assessment for the assessment year commencing on the 1st
day of April, 1988, or any earlier assessment year and
references in this section to the other provisions of this Act
shall be construed as references to those provisions as for the
time being in force and applicable to the relevant assessment
year.
9. The penal provision Section 276 C (2) of the Income Tax Act as it
stood during the Assessment Year 2017-2018 reads as below:-
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& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
“276C. Wilful attempt to evade tax, etc.
(1)...........
(2) If a person wilfully attempts in any manner
whatsoever to evade the payment of any tax, penalty, or
interest under this Act, he shall, without prejudice to any
penalty that may be imposable on him under any other
provision of this Act, be punishable with rigorous
imprisonment for a term which shall not be less than three
months but which may extend to [two years] and shall, in the
discretion of the court, also be liable to fine.
Explanation.—For the purposes of this section, a
wilful attempt to evade any tax, payable or interest
chargeable or imposable under this Act or the payment
thereof shall include a case where any person—
(i) has in his possession or control any books of account
or other documents (being books of account or other
documents relevant to any proceeding under this Act)
containing a false entry or statement; or
(ii) makes or causes to be made any false entry or
statement in such books of account or other documents; or
(iii) wilfully omits or causes to be omitted any relevant
entry or statement in such books of account or other
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& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
documents; or
(iv) causes any other circumstance to exist which will have
the effect of enabling such person to evade any tax, penalty or
interest chargeable or imposable under this Act or the
payment thereof.”
10. The contention of the Standing Counsel for the Income Tax
Department is that, the failure to remit the tax and annexing the proof of payment
of tax along with the returns filed on 31/07/2017 is sufficient to deem the assessee,
a defaulter. Being a defaulter, the presumption of culpable mental state is against
them. Therefore they has to prove their innocence during the trial and cannot short
circuit the judicial process by invoking Section 482 of Cr.P.C.
11. Whereas, the Learned Counsel for the petitioner submits that, on
payment of tax, there is no scope to invoke the deeming provision and proceed
with prosecution. Neither on the date of according sanction nor on the date of
filing the compliant, factually there was no arrears of tax or default in payment of
tax or any evasion of tax to deem the assessee, a defaulter. When on facts there is
no tax payable on the date of according sanction, this case squarely falls under the
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Crl.O.P.Nos.2616 & 2781 of 2020
& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
category of malafide prosecution and non application of mind.
12. In Prem Dass -vs- Income Tax Officer cited supra the Hon’ble
Supreme Court while considering the expression ‘Wilful attempt to evade any tax’
as found in Section 276 C of the Income Tax Act, has held that, there must be
concealment of income by the assessee or the assessee must have furnished
inaccurate particulars of income in order to attract Section 276 C. The relevant
passages in the said Judgment reads as below:-
“8. Wilful attempt to evade any tax, penalty or interest
chargeable or imposable under the Act under Section 276-C
is a positive act on the part of the accused which is required
to be proved to bring home the charge against the accused.
Similarly a statement made by a person in any verification
under the Act can be an offence under Section 277 if the
person making the same either knew or believed the same to
be false or did not believe to be true. Necessary mens rea,
therefore, is required to be established by the prosecution to
attract the provisions of Section 277. We see nothing in
Section 132(4-A) which would establish the ingredients of the
aforesaid two criminal offences contemplated under Sections
276-C and 277 of the Indian Income Tax Act. It may be
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& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
noticed at this point of time that the Tribunal, while
interfering with the penalty imposed under Section 271(1-C)
of the Act came to a positive finding that there is no act of
concealment on the part of the assessee and he had returned
the income on estimate basis. The Tribunal further found that
it is a case purely on difference of opinion as to the estimates
and not a case of concealment of income or even furnishing
of inaccurate particulars of income.
9. In the aforesaid premises, the High Court was
totally in error in interfering with the order of acquittal
passed by the learned Sessions Judge by an elaborate and
well-reasoned judgment. We have no hesitation to come to the
conclusion that the ingredients of offence under Sections 276-
C and 277 of the Income Tax Act have not been established
by the prosecution beyond reasonable doubt, and therefore,
the appellant cannot be convicted of the offence under the
said sections.”
13. In the instant case, admittedly there is no concealment of any
source of income or taxable item, inclusion of a circumstance aimed to evade tax
or furnishing of inaccurate particulars regarding any assessment or payment of tax.
What is involved is only a failure on the part of the petitioner to pay the tax in
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Crl.O.P.Nos.2616 & 2781 of 2020
& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
time, which was later on paid after 4 ½ months along with interest payable. So, it
would not fall under the mischief of Section 276 C of the Income Tax Act, which
requires an attempt to evade tax and such attempt must be a wilful.
14. If the intention (culpable mental state) of the assessee was to
evade tax or attempt to evade tax, they would not have filed the returns in time
disclosing the income and the tax liable to be paid. They would not have remitted
the tax payable along with interest without waiting for the authorities to make
demand or notice for prosecution. Thus, except a delay of 4 ½ months in payment
of tax, it is clear that there was no tax evasion or attempt to evade the payment of
tax. To invoke the deeming provision, there should be a default in payment of tax
in true sense. Nothing can be deemed contrary to the fact borne by record. If such
deeming fiction is applied by the authority, is has to be termed as non application
of mind over the material records.
15. Yet another argument advanced by the Special Public Prosecutor
for the respondent-Income Tax Department is based on Section 278 E of the Act,
which speaks about the presumption of culpable mental state.
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& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
“Section 278 E is extracted below for reference :-
278E - Presumption as to culpable mental state.
(1) In any prosecution for any offence under this Act
which requires a culpable mental state on the part of the
accused, the court shall presume the existence of such mental
state but it shall be a defence for the accused to prove the fact
that he had no such mental state with respect to the act
charged as an offence in that prosecution.
Explanation - In this sub-section, “culpable mental
state” includes intention, motive or knowledge of a fact, or
belief in, or reason to believe, a fact.
(2) For the purposes of this section, a fact is said to be
proved only when the court believes it to exist beyond
reasonable doubt and not merely when its existence is
established by a preponderance of probability.”
16. A 'culpable mental state' which can be presumed under section
278E of the Act would come into play only in a prosecution for any offence under
the Act, when the said offence requires a 'culpable mental state' on the part of the
accused. Section 278 E of the Act is really a rule of Evidence regarding existence
of mens rea by drawing a presumption though rebuttable. That does not mean
that, the presumption would stand applied even in a case wherein the basic
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& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
requirements constituting the offence are not disclosed. More particularly, when
the tax is paid much before the process for prosecution is set into motion. The
presumption can be applied only when the basic ingredient which would constitute
any offence under the Act is disclosed. Then only, the rule of evidence under
section 278 E of the Act regarding rebuttable presumption as to existence of
culpable mental state on the part of accused would come into play.
17. When the facts on record discloses that the tax already paid and
no evasion of tax, no man of ordinary prudence can presume that there is an
attempt to evade tax and such attempt is a wilful one.
18. In the instant case, the Principal Commissioner of Income Tax,
who has accorded sanction on 14/03/2019 has not considered the payment of tax
with interest by the assessee on 15/02/2018. The proceedings granting sanction to
prosecute was contrary to the facts, says, “it is seen from the AIMS that Self-
Assessment amount of Rs.6,85,462/- is unpaid”. Further, the Principal
Commissioner has conspicuously omitted to record the fact of payment of the tax
with interest except to record that, the tax was not paid within the time.
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& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
19. On perusing the complaint, this Court finds that, the complaint
was filed in the month of July-2019. At paragraph 9 of the complaint, it states
that, “The complainant states that the accused has failed to pay the tax liability of
Rs.6,85,641/- along with its return of income filed on 31/07/2017. Till date the
accused has not paid the above said tax amount due to the Department.” (emphasis
added).
20. Thus, the suppression of material facts, intentional suggestion of
falsehood and non-application of mind goes to show that, this is a malicious
prosecution initiated by the Income Tax authorities by abusing the power. When
the malafide is patently manifested, the petitioners need not be forced to undergo
the ordeal of trial, which has no legs to stand.
21. For the said reasons, the petitions to quash the E.O.C.C.No.132 of
2019 on the file of Additional Chief Metropolitan Magistrate, Egmore, is allowed.
Accordingly, these Criminal Original Petitions are allowed. Consequently,
connected Miscellaneous Petitions are closed.
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& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
26.04.2022
Index :Yes/No.
Speaking order/Non Speaking order
bsm
Copy to:-
1. The Deputy Commissioner of Income Tax, Corporate Circule – 1 [1],
Room No.611, Wanaparthy Block, No.121, M.G.Road, Nungambakkam,
Chennai – 600 034.
2. The Additional Chief Metropolitan Magistrate, E.O-1, Egmore, Chennai – 8.
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& Crl.M.P.Nos.1573, 1574, 1658, 1660 of 2020
Dr.G.JAYACHANDRAN,J.
bsm
Pre-delivery common order made in
Criminal Original Petition Nos.2616 & 2781 of 2020
& Crl.M.P.Nos.1573, 1574, 1658 & 1660 of 2020
26.04.2022
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