Abdul Khader Mohammed Farook vs The Deputy Commissioner Of Income Tax
2026 Latest Caselaw 2238 Mad

Madras High Court

Abdul Khader Mohammed Farook vs The Deputy Commissioner Of Income Tax on 29 April, 2026

Author: M.Nirmal Kumar

Bench: M.Nirmal Kumar

                                                                                     Crl.O.P.No.9848 of 2026

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                           RESERVED ON   : 22.04.2026
                                           PRONOUNCED ON : 29.04.2026

                                                          CORAM

                                  THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

                                               Crl.O.P.No.9848 of 2026 and
                                             Crl.M.P.Nos.7042 & 7043 of 2026

                  Abdul Khader Mohammed Farook (M/56),
                  S/o.Abdul Khader,
                  No.59, M.K.N.Road,
                  Guindy, Chennai-600032.
                  PAN: AAHPF4076K.                                             ... Petitioner

                                                            Vs.

                  Deputy Commissioner of Income Tax,
                  Corporate Circle-1[1],
                  Numgambakkam,
                  Chennai-600034.                                              ... Respondent


                  PRAYER: Criminal Original Petition is filed under Section 528 of Bharatiya
                  Nagarik Suraksha Sanhita, 2023, to call for the records relating to
                  E.O.C.C.No.133 of 2019 pending on the file of the Additional Chief
                  Metropolitan Magistrate (Economic Offences), Egmore, Chennai and quash
                  the same.

                                     For Petitioner   :   Ms.N.Lavanya
                                     For Respondent   :   Ms.M.Sheela,
                                                          Senior Standing Counsel (Income Tax) and
                                                          Mr.H.Siddarth,
                                                          Junior Standing Counsel (Income Tax)

                  Page No.1 of 10




https://www.mhc.tn.gov.in/judis
                                                                                     Crl.O.P.No.9848 of 2026

                                                         ORDER

The petitioner/accused facing trial for offence under Section 276C(2) of

Income Tax Act, 1961 before the learned Additional Chief Metropolitan

Magistrate (Economic Offences), Egmore, Chennai in E.O.C.C.No.133 of

2019, has filed this Quash Petition.

2.Learned counsel for the petitioner submitted that the allegation against

the petitioner is that the petitioner filed his return of income for the

Assessment Year 2017-18 on 30.03.2018 declaring the tax and interest liability

of Rs.5,95,616/- but not paid any tax liability at the time of filing the return.

Such non payment of admitted tax constitutes a wilful default to evade

payment of tax attracting prosecution under Section 276C(2) of Income Tax

Act, 1961. Learned counsel further submitted that the entire complaint

proceeds on erroneous understanding of the scope of Section 276C(2) of

Income Tax Act, 1961. As per Section 276C(2) of Income Tax Act, 1961,

criminalisation arises only if wilful attempt to evade payment of tax is found,

hence, the offence necessarily requires a deliberate and conscious act showing

intention to evade payment of tax. In this case, the petitioner voluntarily

disclosed the entire income and tax liability in the return filed before the

Income Tax Department. Once the liability is declared in the return of income,

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the allegation of evasion of tax becomes inherently untenable. The Hon’ble

Apex Court and this Court in plethora of cases held that the word employed in

the Section viz., “wilful attempt” cannot be imported to mere failure to pay the

tax.

3.Learned counsel further submitted that the complainant does not

disclose any act of concealment of income, falsification of accounts,

suppression of transactions or any other act suggesting evasion. The allegation

in the complaint is only that the admitted tax liability not immediately paid.

Mere non-payment or delay in payment of admitted tax does not constitute

evasion. Learned counsel further submitted that during the relevant period

when the return was filed, the petitioner was suffering from ill health and

undergoing medical treatment and his business also incurred severe loss

consequent to which SARFAESI proceedings initiated and multiple properties

brought to distress sale and sold by way of public auction. Due to such

circumstances beyond the control of the petitioner, the petitioner unable to

discharge the tax liability. The omission, if any, is purely inadvertent, neither

wilful nor wanton. In this case, the sanction for prosecution was granted by

the Principal Commissioner of Income Tax under Section 279(1) of Income

Tax Act, 1961 and the sanction granted mechanically without proper

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application of mind to the essential ingredients of the offence. The respondent

relies upon the presumption under Section 278E of Income Tax Act, 1961

relating to culpable mental state. Such presumption can arise only when the

foundational facts constituting the offence are established. In the absence of

any act indicating evasion, the presumption under Section 278E of Income Tax

Act, 1961 cannot be invoked. Further, resorting to criminal prosecution solely

on the ground of non-payment admitted tax amounts to misuse of criminal

process. In support of her submissions, learned counsel for the petitioner

relied on the decisions of this Court in S.P.Velayutham v. The Assistant

Commissioner of Income Tax reported in 2022 SCC OnLine Mad 8887 and

M/s.G Square Layout Private Limited represented by its Directors and others

v. The Deputy Commissioner of Income Tax, Central Circle-1(2),

Investigating Building, Nungambakkam, Chennai-600034 in

Crl.O.P.No.22880 of 2025 dated 07.10.2025 wherein this Court held that

though the prosecution is maintainable for non-payment of tax within the

stipulated period, mere delay in payment cannot be termed a wilful default and

will not attract penal provisions. Hence, the continuation of the prosecution

against the petitioner amounts to abuse of process of law and prayed for

quashing the complaint.

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4.Learned Senior Standing Counsel (Income Tax) appearing for the

respondent viz., Deputy Commissioner of Income Tax filed counter and

submitted that the petitioner is being prosecuted for offence under Section

276C(2) of Income Tax Act, 1961 for wilful attempt to evade payment of tax

for the Assessment Year 2017-18. The petitioner filed his return of income on

30.03.2018 declaring tax and interest liability of Rs.5,95,616/- but failed to pay

as mandated under Section 140A of Income Tax Act, 1961. Even at this stage,

the default continues and no amount paid by the petitioner. On completion of

assessment, Assessment Order dated 22.12.2019 passed and a notice for

demand under Section 156 of Income Tax Act, 1961 issued. The total demand

determined is Rs.1,91,43,523/- inclusive of tax and applicable interest.

Admittedly, the petitioner not paid any portion of the said demand till date.

The failure to discharge both admitted tax and subsequently crystallised

demand demonstrates a continuous and deliberate default, attracting the

ingredients of Section 276C(2) of Income Tax Act, 1961. She further

submitted that the petitioner failed to file any appeal for more than six years

against the assessment order, thus, the assessment order reached finality in

2019 and penalty proceedings also concluded. In this case, the trial is about to

come end. At this stage, the petitioner filed appeal before the Commissioner

of Income Tax (Appeals) with extraordinary delay of 2,211 days along with

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condone delay petition. Either the delay is condoned nor there is any stay of

demand.

5.She further submitted that the petitioner entered appearance before the

trial Court through counsel on 19.09.2019 but remained absent on the very

next hearing resulting in issuance of non-bailable warrant and thereafter,

surrendered only on 25.01.2022 after two years. Again the petitioner remained

absent on the subsequent hearing dates leading to issuance of another non-

bailable warrant on 05.04.2022, thereafter appeared before the trial Court.

Subsequently, the petitioner absented himself on 07.08.2023 without any

representation resulting in issuance of yet another non-bailable warrant,

thereafter, the petitioner surrendered only on 04.12.2025 after two years. That

to when the Court indicated initiation of proclamation proceedings, the

petitioner appeared and recalled the non-bailable warrant.

6.It is further submitted that Section 276C(2) of Income Tax Act, 1961

encompasses wilful attempt to evade payment of tax which includes deliberate

non-payment despite knowledge of liability. In the present case, the petitioner

had full knowledge of liability first by way of self-assessment and thereafter

on assessment order yet failed to pay any amount. The presumption for

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culpable mental state of mind is applicable under Section 278E of Income Tax

Act, 1961 wherein the Court shall presume the existence of culpable mental

state once foundational facts are established ant the burden lies on the accused

to rebut the same. In the present case, the foundational facts of tax liability

and continued non-payment stand clearly established. Once non-payment and

liability are shown, mens rea is presumed, and the burden shifts to the accused

to disprove it beyond reasonable doubt. Failing to do so before the trial Court,

thereafter filing this petition to quash the proceedings under Section 482

Cr.P.C./528 BNSS is not permissible. The points raised by the petitioner are

factual and it is for the trial Court to appreciate during evidence. The sanction

under Section 279 of Income Tax Act, 1961 accorded after careful

consideration of relevant facts and materials and on application of mind

independently. The petitioner having availed full opportunity to defend and

having allowed the trial to reach its final stage, cannot now seek to abort the

proceedings without any new material or change in circumstances. In view of

the above, the prosecution is validly instituted supported by statutory

presumption under Section 278E and the case progressed to the stage of final

adjudication. The citations referred by the learned counsel for the petitioner

are not applicable to the facts and circumstances of the present case. In that

cases, after issuance of show cause notice, the assessee made payments and

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there was some default but not wilful default. In the present case, on the facts,

it is seen that the petitioner is a wilful defaulter and not even paid the amount

due on the declared tax. Hence, she prayed for dismissal.

7.Considering the submissions and on perusal of the materials, it is seen

that though the petitioner filed the return for the Assessment Year 2017-18 on

30.03.2018 declaring the tax and interest liability of Rs.5,95,616/-, but not paid

the amount within the stipulated period or extended period. From the

Assessment Order dated 22.12.2019, it is seen that a demand notice was issued

under Section 156 of Income Tax Act, 1961 and the total demand determined

is Rs.1,91,43,523/-. The petitioner not preferred any appeal against the

Assessment Order for more than six years and finally in the year 2019, with a

delay of 2,211 days, filed appeal with condone delay petition. Neither the

delay is condoned nor the appeal is admitted. This appears to be an

afterthought raised only after the prosecution in this case launched and

progressed. The petitioner had been repeatedly absent on more than four

occasions and only began participating in the trial after initiation of

proclamation proceedings. The trial has now reached its final stage.

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8.The points raised herein already raised by the petitioner during the

trial. Re-agitating the same points in the present quash petition at this belated

stage cannot be entertained.

9.In view of the above, this Court does not find merit consideration in

the submissions of the learned counsel for the petitioner. Accordingly, this

Criminal Original Petition stands dismissed.

10.It is made clear that the observations and findings recorded in this

order, is only for the purpose of disposal of this quash petition. The trial Court

to decide the case, on its own merits, uninfluenced by this order.

Consequently, connected Miscellaneous Petitions are closed.

29.04.2026 Speaking order/Non-speaking order Index: Yes/No Neutral Citation: Yes/No vv2

To

1.The Additional Chief Metropolitan Magistrate (Economic Offences), Egmore, Chennai.

2.The Deputy Commissioner of Income Tax, Corporate Circle-1[1], Numgambakkam, Chennai-600034.

https://www.mhc.tn.gov.in/judis

M.NIRMAL KUMAR, J.

vv2

PRE-DELIVERY ORDER IN

29.04.2026

https://www.mhc.tn.gov.in/judis