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TMI Blog2022 (7) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings presuming the contrary. The malafide projected in these petitions does not carry any merit, since the Department has caused notice to the assessee and the representative of the petitioner and participated and given an explanation which is found not satisfactory leading to launching the prosecution. The absence of assessee in India or the communication gap between herself and her representative cannot be a ground to quash the prosecution. Further compounding offence under IT Act is not an absolute right vested in the assessee. The compounding of cases based on facts and merits of each case where the assessee disclose the true and actual income but file it belatedly cannot be equated to the case where the assessee undisclosed the true and actual income also files the returns belatedly. Hence this court holds no merit in these petitions, in view of the presumption clause. Therefore, these Criminal Original Petitions are dismissed. - Crl. O.P. Nos. 16387, 16390, 23229, 23330, 23252, 23327, 23332, 23320, 23324 of 2019 in Crl. M.P. Nos. 8216, 8218, 12253, 12201, 12246, 12257, 12242 & 12244 of 2019 - - - Dated:- 5-7-2022 - THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file her Return of Income for the Assessment Years 2011 to 2016. She also failed to pay the tax due before the due date of filing the return of income with willful intention to evade tax payable to the Exchequer. Under Section 139 (1) of the Income tax Act, 1961, the assessee has to file the Return of Income within the time prescribed, failing which, the assessee is liable for prosecution under Section 276CC of the Income Tax Act, 1961. If the assessee attempts to evade tax, penalty and interest chargeable willfully, it is punishable under Section 276C (1) of the Income Tax Act, 1961. 4. In this case, the petitioner failed to file her Return in time. In the course of enquiry made under Section 131(1A) of the Income Tax Act, 1961, M/s. Ganesan Associates, Chartered Accountant represented the assessee and admitted the failure to file Returns. The enquiry revealed non-filing of Return in time and there was also an attempt to evade tax willfully. Show cause notices were issued for each Assessment Years calling for explanation, why prosecution proceedings should not be initiated for violation of Sections 276CC and 276C (1), which are two distinct offences. 5. The assessee in respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0004329 14.02.2018 00452 7,240 0004329 14.02.2018 00452 2012-13 5,01,670 0013283 14.02.2018 00458 2011-12 1,48,800 0004329 14.02.2018 00425 2010-11 93,590 0013283 14.02.2018 00438 9. The Leaned counsel for the petitioner further submitted that, the assessment made by the Department is under challenge and in so far as prosecution launched for non-filing of returns in time for the Assessment Years, 2010-2011 and 2011-2012 cases were compounded. The same yardstick ought to have been followed in the remaining cases also, but for no reason, the Department is not inclined to compound the rest of the complaints. 10. The Learned counsel for the petitioner also submitted that, when the assessment by the Department demanding exorbitant tax, penalty and inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Income Tax Act thereby attract protection for the offences under Section 276CC, Section 276C(1) of Income Tax Act 1961. If not for the investigation proceedings, the assessee would have not come forward to file her returns and the exchequer would have been deprived of its legitimate dues. Thus, the willful element which is sine qua non is very much present in the case of the petitioner. 13. The Act of the petitioner by filing the returns upon detection and with concealed income which is violation of the statute thereby constitutes an offence. Thus, the accused cannot be given a clean chit, and her default is willful. If the timelines and schedules as per the laws are not followed, then it would adversely impact the Government's revenue interest. 14. The Learned Counsel for the Respondent-Department rely upon the following judgments to buttress her submissions: (i) P. Jayappan v. S.K. Perumal, First Income Tax Officer, Tuticorin reported in AIR 1984 SC 1693; (ii) Prakash Nath Khanna Anr. v. Commissioner of Income Tax and Anr. made in Appeal (Crl.) 1260-1261 of 1997 dated 16.02.2004; (iii) Sasi Enterprises v. Assistant Commissioner of Income Tax ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice issued to the assessee, she has not filed Returns for her individual income and her belated return, on investigation found omission of certain income. Particularly, source for payment through credit cards, interest accumulated in fixed deposits etc. were deducted and therefore, the prosecution has been launched. 18. The undisclosed income for each of the Assessment Years, deducted by the Department in the course of investigation are:- Financial Year Assessment Year Undisclosed Income (In Rs.) 2009-10 2010-11 4,48,116 2010-11 2011-12 5,76,079 2011-12 2012-13 11,42,342 2012-13 2013-14 10,34,354 2013-14 2014-15 20,17,717 2014-15 2015-16 10,82,465 19. The sum and substance of the complaints is that while the due date for filing the Return for each A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to proceed against the petitioner for non-filing of Return in time which is punishable under Section 276CC of the Income Tax Act, 1961 and for filing the Return belatedly with suppressed income, which is punishable under Section 276C(1) of the Income Tax Act, 1961. 22. Since Section 278E of the Income Tax Act, 1961 gives a presumption to lay prosecution in case of non-filing of Return within the time limit and suppression of income in the Return filed is with malafide intention to evade Tax, the Court cannot by exercising its power under Section 482 of Cr.P.C., quash the proceedings presuming the contrary. The malafide projected in these petitions does not carry any merit, since the Department has caused notice to the assessee and the representative of the petitioner and participated and given an explanation which is found not satisfactory leading to launching the prosecution. The absence of assessee in India or the communication gap between herself and her representative cannot be a ground to quash the prosecution. Further compounding offence under IT Act is not an absolute right vested in the assessee. The compounding of cases based on facts and merits of each case where the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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