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TMI Blog2023 (9) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income Tax Act, 1961 (for short `the Act'), along with all the consequential proceedings arising therefrom, including the summoning order dated 22.12.2014 (Annexure P-2) passed by the learned Chief Judicial Magistrate, Chandigarh. 2. Petitioner No. 1 is a registered firm, of which petitioners No. 2 to 4 are the Directors. The dispute is with regard to non-payment of the tax, in time, which was self-assessed by petitioner No. 1, while filing the Income Tax Return for the Assessment Year 2011-12. 3. On 29.09.2011, petitioner No. 1 had filed Income Tax Returns for the Assessment Year 2011-12, thereby declaring a Gross Total Income of Rs. 6,72,05,864/- and the amount of aggregate tax was shown as Rs. 1,36,20,887/-. Thereafter, the said r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned. He further submits that the entire dues i.e. the tax amount and the interest thereof has already been cleared. He, thus, argues that once the respondent-Department has opted for levy the penalty, then the filing of the criminal complaint is nothing, but an abuse of the process of law, as for the same cause of action, two recourses cannot resorted to by the respondent-Department. 6. Learned Senior counsel for the petitioners further submits that prosecution under Section 276(C)(2) read with other Sections of the Act, can only be launched, if there is a willful evasion/attempt of either the tax, the penalty or the interest amount, apparent on the face of the record, whereas in the present case, neither of the said circumstance exists. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the respondent-Department relies upon the judgments delivered by the Hon'ble Supreme Court in P. Jayappan vs S.K Perumal, First Income-Tax Officer, Tuticorin, 1985 (1) SCC 536 and Sri T. Ashok Pai vs Commissioner of Income Tax Bangalore, 2007 (7) SCC 162 and the Delhi Court's judgment in Commissioner of Income Tax Vs. Worldwide Township Projects Ltd. (Delhi), 2014(367) ITR 433. 11. I have heard the learned counsel for the parties. 12. Before proceeding further, it would be just and relevant to extract Section 276 of the Act, as under:- "WILFUL ATTEMPT TO EVADE TAX, ETC. 276C. (1) If a person wilfully attempts in any manner whatsoever to evade any tax, penalty or interest chargeable or imposable under this Act, he shall, witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be omitted any relevant entry or statement in such books of account or other 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. 13. Filing of the Income Tax Returns for the Assessment Year 2011-12 is not denied. The other undisputed facts are computation made therein i.e. the Gross Income, Net Income, Income Tax etc.; levy of penalty on the delayed payment of income tax and payment of amount along with the interest and its receipt by the respondent-Department. The moot question before this Court is whether the delayed payment can be termed as evasion of tax, for which the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2. Sri. K.V. Aravind, learned Senior Standing Counsel for Income-tax Department would contend that there is reverse burden of proof under Section 277 of the Income Tax Act inasmuch as requiring the assessee to support the statements made in the returns. xx xx xx 10. Answer to Point No. 3: Whether the delayed payment of Income Tax would amount to evasion of tax or not? 10.1. This question is no longer res integra inasmuch as this Court in Crl.P No. 4891/2014 (Vyalikaval's case) has held that delayed payment of income tax would not amount to evasion of tax. Applying the same principle to the present fact situation, the delay caused by the petitioner-Company in making payment of the income tax cannot be said to be evasion. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is inclusive one it is not the case of the Department that assessee has made any false entry in the statements or documents or omitted to make any such entry in the books of account or other document or acted in any other manner to avoid payment of tax. It is not the case of the Department that the assessee has made an attempt to alienate the property in order to defeat the payment etc., Therefore, when the Return has been properly accepted and the assessment is also confirmed, mere default in payment of taxes in view of this Court, unless such default arising out of any of the circumstances, which will have a effect of the assessee to defeat the payment, the word employed in the section viz., "wilful attempt" cannot be imported to mere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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