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TMI Blog2024 (10) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... to show that the Petitioners failed to pay the self-assessment tax together with interest and penalty. Thus, when the self-assessment tax was deposited much prior to the filing of the complaint and intimated to the department vide letter dated 28.03.2018, it was incumbent upon the complainant to obtain a fresh authorisation with regard to the delayed interest and penalty only. Besides, there is no response given to the request made by the Petitioners in the letter dated 28.03.2018 for waiver of interest and penalty. Thus, the authorisation obtained in the year 2017, no longer subsists when the Petitioners paid the self-assessment tax during the year 2017-2018. What remained at the time of filing of the complaint was only interest on delayed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnable forthwith. The matter is taken up for final disposal at the admission stage with consent of parties. 3. The Petitioners are seeking reliefs as per prayer clauses (A) and (B) as under: A. This Hon ble Court be pleased to issue a Writ of Certiorari or a Writ in the nature of Certiorari or anu other Writ, Order or Direction calling for the Records and Proceedings from the Court of Chief Judicial Magistrate at Panaji, Goa in A.O.A. 331/2019 and upon perusing the validity and propriety thereof, be pleased to quash and set aside the Private Complaint being A.O.A. No. 331/2019; B. During the pendency and disposal of the present Petition, this Hon ble Court be pleased to stay the proceedings before the Court of Chief Judicial Magistrate, Pan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Department in 2018. While depositing such an amount, the Petitioners again requested for waiver of interest, however, there was no response from the Department. 7. Suddenly, in the year 2019, a criminal complaint under Section 200 of Cr.P.C. for the offence punishable under Section 276C (2) read with Section 278B of the Income Tax Act was launched against the Petitioners. The complaint filed in the year 2019 only refers to the self-assessment and the default in paying the tax which is assessed by the Department together with interest and penalty. 8. Mr. Rao appearing for the Petitioners would submit that in the present peculiar circumstances, there is no question of any wilful default or attempt on the part of the Petitioners to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 013-2014. 11. The rival contentions fall for determination. 12. In Prem Dass (supra), the Apex Court while considering the scope of Section 276 and more particularly on wilful act , observed as under: 8. Wilful attempt to evade any tax, penalty or interest chargeable or imposable under the Act under Section 276-C is a positive act on the part of the accused which is required to be proved to bring home the charge against the accused. Similarly a statement made by a person in any verification under the Act can be an offence under Section 277 if the person making the same either knew or believe the same to be false or does not believe to be true. Necessary mens rea, therefore, is required to be established by the prosecution to attract the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 276C of the Income Tax Act and it would not be considered as an attempt to evade the tax. It is also observed that there must be a wilful act including mens rea to evade the tax. Thus, the observations of the learned Single Judge in the case of Unique Trading Company (supra) are clearly applicable to the matter in hand. 14. The correspondence exchanged between the parties, would clearly go to show that the Petitioners filed the self-assessment returns showing the tax liability for more than Rs. 28 lakhs for the Assessment Year 2013-2014. The correspondence further shows that the Petitioners sought time to pay the assessed tax and that too, by installments. However, it is also a matter of record that such tax was not paid and acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cr.P.C. would clearly go to show that the averments in the said complaint are based only on the authorisation obtained in the year 2017. There is absolutely no reference with regard to the payments made by the Petitioners in the year 2017-2018 as reflected in the letter dated 28.03.2018. Thus, the payment of the tax liability was deposited by the Petitioners about a year ago, prior to filing of the complaint. There is no whisper of such deposits made by the Petitioners in the entire complaint. The averments in the complaint would go to show that the Petitioners failed to pay the self-assessment tax together with interest and penalty. Thus, when the self-assessment tax was deposited much prior to the filing of the complaint and intimated to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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