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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 ..... that the income tax was self-assessed and payment of the same stands also made, though belatedly. Thus, the question of evasion of tax does not arise in the present facts and circumstances. The facts and circumstances of the case further does not reveal that there was a deliberate and willful default of evasion of tax on the part of the petitioners Department is unable to show anything on record as to how and in what manner, the petitioners have ever tried to evade the tax particularly, when the same was duly shown and admitted/acknowledged while filing the Income Tax Returns for the Assessment Year 2011-12. Assessee petition allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 7. While relying upon the judgment delivered by the Karnataka High Court in Confident Projects (India) (P.) Ltd. Vs Income Tax Department, Circle 2(1)(1), Bengaluru, (2021) 124 Taxmann.com 36 (Karnataka), learned Senior counsel for the petitioners argues that the delayed payment of the tax amount would not amount to evasion of the tax and moreso, when the tax has already been acknowledged/shown and admitted at the time of filing of the Income Tax Returns. 8. Learned Senior counsel for the petitioners further submits that against the aforesaid judgment of the Karnataka High Court, the respondent therein filed Special Leave to Appeal No. 8316 of 2021, which was dismissed by the Hon'ble Apex Court vide order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears 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, penalty 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 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 alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be said to be evasion. 10.2. The fact remains that income tax has been paid and the authorities have received the necessary taxes. If at all, for the said delay, there could be an interest component which could have been levied. 10.3. Hence, I answer Point No. 3 by holding that delayed payment of Income Tax would not amount to evasion of tax, so long as there is payment of tax, more so for the reason that in the returns filed there is an acknowledgement of tax due to be paid. 11. Answer to Point No. 4: Whether all the Directors of the Company can be prosecuted for any violation of the Income Tax Act in terms by relying on the inclusive definition under Section 2(35) of the Income Tax Act? …………." As noticed above, the Special Leave to Appeal filed against the aforesaid judgment was dismissed by the Hon'ble Supreme Court. Further, similar was taken by the Madras High Court in S.P. Velayutham's case (supra), when it was held as under:- "8. To prosecute a person there must be a wilful attempt on the part of the assessee to evade payment of any tax, penalty or interest. The explanation to the above section makes it very clear that the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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