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2022 DIGILAW 938 (JHR)

Lalan Saw v. State of Jharkhand

2022-07-28

SANJAY KUMAR DWIVEDI

body2022
JUDGMENT : Heard Mr. Sumeet Gadodia, learned counsel for the petitioner, Mr. Gourang Jajodia, learned counsel appearing on behalf of the State and Ms. Amrita Sinha, learned counsel for the O.P. No. 2. 2. This criminal miscellaneous petition has been filed for quashing of entire criminal proceeding including order taking cognizance dated 29.03.2019 passed by the learned Special Judge Eco. Offences, Dhanbad in connection with C.O. Case No. 05/2019, pending in the Court of learned Special Judge Eco. Offences, Dhanbad. 3. O.P. No. 2 has lodged the complaint alleging therein that the petitioner having PAN AIMPN7324C filed two Income Tax Return for Assessment year 2013-2014. The first I.T. Return was filed manually on 07.08.2013 by putting his signature on verification portion of the said return disclosing his total income from all source at Rs. 4,40,711/- without claiming refund before the Income Tax Department, Dhanbad. Further the petitioner filed another Income Tax Return electronically on 12.05.2014 showing total income of Rs. 2,53,650/- and claimed a refund of Rs. 16,237/- against TDS amounting to Rs. 22,793/-. The return filed electronically was processed by the CPC and refund of Rs. 16,970/- was issued and credited in the account of the accused on 26.10.2014 in A/C No. 538585108. It is further alleged that the case of the accused was re-opened under section 147 of the Income Tax Act on the belief of escape income of Rs. 1,87,061/- and after completion of scrutiny assessment on 27.07.2017 a sum of Rs. 2,53,650/- which was filed through electronic process was admitted by the accused in his state of oath under section 131 of I.T. Act on 02.08.2017. The accused accepted that the verification signature in both the return has been done by him and Form 16 was handed over to another person for claiming refund after filing of return of income. The penalty of Rs. 20,000/- under section 274 (1)(C) of Income Tax Act was imposed. Show cause notice was issued by the assessing officer on 23.01.2018 as to why prosecution under section 277 of Income Tax Act should not be launched. The petitioner submitted his show cause reply on 08.02.2018 which was not accepted by the assessing officer. Another show cause notice was issued on 18.11.2018 as to why prosecution under section 277 of Income Tax Act should not be launched but again the reply sent by the petitioner was not accepted. The petitioner submitted his show cause reply on 08.02.2018 which was not accepted by the assessing officer. Another show cause notice was issued on 18.11.2018 as to why prosecution under section 277 of Income Tax Act should not be launched but again the reply sent by the petitioner was not accepted. Hence, it is found that the petitioner has concealed his true income and filed his Income Tax Return for relevant Assessment Year 2013-2014 by furnishing inaccurate particulars of income, and hence, section 276C and 277 of Income Tax is attracted. It is further alleged that the Principal Commissioner of Income Tax Department, Dhanbad accorded sanction for launching prosecution against the petitioner and authorized the complainant to file the present case. On the basis of aforesaid written complaint a complaint case bearing C.O. Case No. 05/2019, dated 28.03.2019 was registered for the alleged offences under section 276C/277 of the Income Tax Act against the petitioner. 4. Mr. Sumeet Gadodia, learned counsel appearing for the petitioner submits that pursuant to sanction by the competent authority the case was filed against the petitioner and the learned court below has taken cognizance under section 276C and 277 of the Income Tax Act, 1961. He further submits that the petitioner filed income tax return manually on 07.08.2013 disclosing his total income as Rs. 4,40,711/- and the petitioner again filed income tax return electronically on 12.05.2014 disclosing his total income as Rs. 2,53,650/-. He further submits that this income tax return was filed for the Assessment Year 2013-2014. He further submits that two figures occurred in filing the income tax return for the Assessment Year 2013-2014. He further submits that the petitioner received notice under section 148 of the Income Tax Act and he has accepted the total amount of Rs. 4,40,711/- but inadvertently in the electronic income tax return was Rs. 2,53,650/-. He further submits that once notice under section 148 of the Act is received and if the same has been complied with, it deemed that section 139 of the Act has been complied with. He further submits the same was accepted by the Income Tax Department and penalty of Rs. 20,000/- was imposed upon the petitioner and by way of depositing the same the petitioner was discharged from his liability. He further submits the same was accepted by the Income Tax Department and penalty of Rs. 20,000/- was imposed upon the petitioner and by way of depositing the same the petitioner was discharged from his liability. He further submits that once notice has been complied with there was no occasion to file complaint under section 276 C and 277 of the Income Tax Act. 5. Per contra, Ms. Amrita Sinha, learned counsel for the O.P. No. 2 submits that for the Assessment Year, 2013-14 petitioner filed income tax return on 07.08.2013 manually disclosing total taxable income of Rs. 4,40,711/- and no refund was claimed. She further submits that the petitioner filed another income tax return electronically on 12.05.2014 for the Assessment Year, 2013-2014 declaring total taxable income of Rs. 2,53,650/-. She further submits that both the income tax return was filed in the signature of the petitioner. She further submits that the income tax return was accepted electronically in the light of circular of the Income Tax Department. She further submits that refund of TDS amount was credited in the bank account of the petitioner. She further submits that this anomaly of two figures came to the knowledge of the Department and the Department issued re-assessment notice on 05.10.2016. She further submits that in compliance of notice, the petitioner filed his income tax return on 04.11.2016 declaring total taxable income of Rs. 4,40,711. She further submits that after hearing the petitioner, the Department passed re-assessment order on 27.07.2017 assessing total income of Rs. 4,40,711/- against the returned income of Rs. 2,53,650/- and a penalty under section 271 (1) (c) of the Income Tax Act was imposed upon the petitioner amounting to Rs. 20,000/-. She further submits that the Department issued two show cause notices dated 23.01.2018 and 18.11.2018 as to why prosecution should not be launched against the petitioner. She further submits that the petitioner filed reply but the Department being satisfied that there is willful attempt to evade tax, has filed case under section 276 C and 277 of the Income Tax Act on 28.03.2019. She further submits that section 276 C of the Act speaks of willful act and the petitioner willfully has not filed the Income Tax Return and the case has rightly been launched against the petitioner. She further submits that imposition of penalty will prejudice the case of prosecution. 6. She further submits that section 276 C of the Act speaks of willful act and the petitioner willfully has not filed the Income Tax Return and the case has rightly been launched against the petitioner. She further submits that imposition of penalty will prejudice the case of prosecution. 6. In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on record and finds that admittedly the petitioner filed income tax return for the Assessment Year 2013-2014 manually on 07.08.2013 disclosing the total taxable income of Rs. 4,40,711/- and the petitioner filed income tax return electronically on 12.05.2014 disclosing the total taxable income of Rs. 2,53,650/-. So far as dates of filing the income tax return are concerned, it is not disputed by the learned counsel for the O.P. No. 2 and the same has been disclosed in the counter-affidavit filed on behalf of O.P. No. 2. It is an admitted fact that Income Tax Department came to the knowledge that petitioner has not filed correct income tax return, notice under section 148 of the Income Tax Return has been issued against the petitioner and pursuant thereto the petitioner has filed income tax return accepting that his total taxable income is Rs. 4,40,711/- and the Department has accepted that fact and imposed penalty to the tune of Rs. 20,000/- which has been deposited by the petitioner. Sub-section 5 of Section 139 of the Income Tax Act speaks of filing revised return suo motu if he finds that there is some error in filing of the return. 4,40,711/- and the Department has accepted that fact and imposed penalty to the tune of Rs. 20,000/- which has been deposited by the petitioner. Sub-section 5 of Section 139 of the Income Tax Act speaks of filing revised return suo motu if he finds that there is some error in filing of the return. Section 148 of the Income Tax Act stipulates as under :- “148:-Issue of notice where income has escaped assessment.- Before making the assessment, reassessment or recomputation under section 147, and subject to the provisions of section 148-A, the Assessing Officer shall serve on the assesse a notice, along with a copy of the order passed if required, under clause (d) of Section 148-A, requiring him to furnish within such period, as may be specified in such notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139.” Looking into the language of Section 148 of the Act, it appears that if the assessing officer is satisfied that there is requirement of issuing notice and if the assessment is not filed correctly it has issued disclosing the assessment in prescribed form and verified in the prescribed manner and applied accordingly as return required to be furnished under section 139 of the Income Tax Act. This Section clearly speaks that once it is complied and accepted by the Department it deemed that Section 139 of the Act is complied with moreover, petitioner has already been imposed penalty of Rs. 20,000/- which has been deposited by him. Had it been case that inspite of notice under section 148 of the Act, the Department has not accepted the same there were dispute with regard to the return, Section 276(C)and 277 of the Income Tax Act may come into play. In the case in hand, the Department has accepted the reply of notice under section 148 of the Act which deemed that section 139 of the Act has been complied with. In the case in hand, the Department has accepted the reply of notice under section 148 of the Act which deemed that section 139 of the Act has been complied with. This is not a case that the Department has not accepted the reply under section 148 of the Act. 7. In view of the aforesaid facts, reasons and analysis, entire criminal proceeding including order taking cognizance dated 29.03.2019 passed by the learned Special Judge Eco. Offences, Dhanbad in connection with C.O. Case No. 05/2019, pending in the Court of learned Special Judge Eco. Offences, Dhanbad, are hereby quashed. 8. Cr.M.P. No. 1558 of 2021 stands allowed and disposed of. Pending interlocutory application, if any, also stands disposed of.