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TMI Blog2024 (1) TMI 1227X X X X Extracts X X X X X X X X Extracts X X X X ..... laint came to be instituted. Therefore, by no stretch of imagination can it be held that there was any evasion of tax on the part of the petitioners, though there was a delay in the payment of the tax for which interest stands levied and paid. Petition allowed. - HON'BLE MR. JUSTICE JASJIT SINGH BEDI Present: For the Petitioner : Mr. Akshay Bhan, Sr. Advocate with Mr. Shantanu Bansal, Advocate. For the Respondent : Mr. Varun Issar, Advocate. **** JASJIT SINGH BEDI, J. The prayer in the present petition under Section 482 Cr.P.C. is for quashing of the Complaint No. 1368 of 2014 dated 01.04.2014 (Annexure P-6) under Sections 276C read with Section 278B of the Income Tax Act, 1961, the impugned order dated 20.08.2018 (Annexure P-7) vide which a prima facie case is stated to be made out, the order dated 06.09.2018 (Annexure P-8) vide which the charges have been framed and all subsequent proceedings arising therefrom. 2. The brief facts of the case as emanating from the pleadings are that the petitioner No. 1 is a Limited Company and is assessed to tax by the respondent. The petitioner Nos. 2 to 4 are the Directors of petitioner No. 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under Section 276C(2) of the Income Tax Act against the petitioners. 8. Based on the aforementioned opinion, the impugned complaint dated 29.03.2014 came to be filed which is attached as Annexure P-6 to the petition. The petitioners appeared before the Courts below and the said Court vide order dated 20.08.2018 came to be conclusion that a case was made out. The copy of the said order dated 20.08.2018 is attached as Annexure P-7. The charges came to be framed vide order dated 06.09.2018. The copy of the said order is attached as Annexure P-8 to the petition. 9. The complaint dated 29.03.2014 (Annexure P-6), the impugned order dated 20.08.2018 (Annexure P-7), the order framing charges dated 06.09.2018 (Annexure P-8) and all subsequent proceedings arising therefrom are impugned in the present petition. 10. The learned Senior counsel for the petitioners contends that the petitioners are being prosecuted for making an attempt to evade the tax which was self-assessed by them while filing the Income Tax Return for the Assessment Year 2012-13. In fact, there was no evasion at all on their part. The tax amount was acknowledged/shown and admitted in the Income Tax Return itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with fine; (ii) in any other case, with rigorous imprisonment for a term which shall not be less than three months but which may extend to [two] years and with fine. (2) If a person wilfully attempts in any manner whatsoever to evade the payment of any tax, penalty or interest under this Act, he shall, without prejudice to any penalty that may be imposable on him under any other provision of this Act, be punishable with rigorous imprisonment for a term which shall not be less than three months but which may extend to [two] years 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 omit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciple 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. 10.2. 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? . (emphasis supplied) The Special Leave to Appeal filed against the aforesaid judgment was dismissed by the Hon ble Supreme Court. The Madras High Court in S.P. Velayutham s case (supra), 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 inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the tax particularly, when the same was duly shown and admitted/acknowledged while filing the Income Tax Returns for the Assessment Year 2011-12. (emphasis supplied) 15. Coming back to the facts of the instant case, the filing of the Income Tax Returns for the Assessment year 2012-13 is not denied. The other undisputed facts are computation made therein i.e. the gross income, net income and income tax etc. The only question that remains is as to whether delayed payment alongwith the interest could be termed as evasion of tax for which the complaint in question has been filed. The judgments in Confident Projects (India) (P.) Ltd.(supra), S.P. Velayutham (supra) and M/s Health Bio Tech Ltd. others (supra) have categorically held that delayed payment of income tax would not amount to evasion of tax. In the instant case, as has already been noticed hereinabove, the Return for the total income for the year 2012-13 was filed on 29.09.2012 for amount of Rs. 8,20,53,544/-. The tax was self-assessed for an amount of Rs. 2,10,91,150/-. On account of the financial state of the company which remains debatable, the tax alongwith interest was paid on 10.07.2013. However, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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