[1.0] Present Special Criminal Application under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the petitioner herein – original accused to quash and set aside the impugned complaints being Criminal Case Nos.165/1987 to 168/1997 filed by the Income Tax Department for the offence punishable under Section 276C(2) of the Income Tax Act, 1961 (hereinafter referred to as “IT Act”) for nonpayment of the advance taxes for the relevant assessment years. [2.0] Respondent No.2 herein – the Income Tax Officer had filed the impugned complaints against the respective petitioner in the Court of learned Chief Judicial Magistrate, Ahmedabad for the offence punishable under Section 276C(2) of the IT Act for the assessment years alleging interalia that for the assessment years 198181; 198283; 198384 and 198485, petitioner – assessee had not paid the advance tax and has unlawfully attempted to evade the payment of tax. That in the said complaints, the learned Magistrate directed to issue summons against the petitioner – original accused for the offence under Section 276C(2) of the IT Act. Being aggrieved and dissatisfied with the impugned complaints/criminal cases, petitioner – original accused has preferred the present Special Criminal Application under Article 226 of the Constitution of India read with Section 482 of the CrPC.
[3.0] Shri Mithil Mehta, learned advocate appearing on behalf of the petitioner has vehemently submitted that as such there was no wilful attempt made by the petitioner – accused – assessee to evade the payment of advance tax as the petitioner himself disclosed and filed the return of income. It is further submitted that even the order of penalty passed under Section 273(1)(b) of the IT Act for nonpayment of the advance tax for the assessment years in question came to be quashed and set aside by the Deputy Commissioner of Income Tax (Appeals), ARII, Ahmedabad. It is further submitted that even subsequently the petitioner paid the amount of income tax for the assessment years in question. Therefore, it is requested to quash and set aside the impugned complaints.
[4.0] Petition is opposed by Ms. Mona Bhatt, learned advocate appearing on behalf of the Income Tax Department – original complainant. It is submitted that whether the petitioner has willfully attempted to evade the payment of tax/advance tax is a question which is required to be considered at the time of trial on leading evidence as the same can be said to be the defence of the petitioner. Therefore, it is requested not to exercise powers under Section 482 and not to quash and set aside the impugned complaints.
[4.1] Ms. Mona Bhatt, learned advocate appearing on behalf of the Income Tax Department has also submitted that mere subsequent disclosure or filing of a return and/or subsequent payment of the income tax would not absolve the petitioner for the offence under Section 276C(2) of the IT Act for nonpayment of the advance tax for the different assessment years i.e. 198182, 1982 83, 198384 and 198485. It is further submitted that whether there was any willful attempt on the part of the petitioner – assessee to evade the payment of tax / advance tax or not, is a question which is required to be considered at the time of trial and the aforesaid is the defence of the accused which is also required to be considered at the time of trial while leading evidence. Therefore, it is requested to dismiss the present petition.
[5.0] Heard the learned advocates appearing for respective parties at length. At the outset it is required to be noted that the petitioner is sought to be prosecuted for the offence under Section 276C(2) of the IT Act alleging interalia that he has not paid the advance tax as required under the provisions of the IT Act and not only that but he did not even file the return and disclose the taxable income and has tried to evade the tax and thereby committed offence under Section 276C(2) of the IT Act. It is the case on behalf of the petitioner that as such there was no willful attempt on the part of the petitioner – assessee to evade the payment of tax/advance tax. Whether there was willful attempt by the petitioner – assessee to evade the payment of tax or not, is a defence of the petitioner – assessee – accused which is required to be considered at the time of trial while leading evidence at this stage while exercising powers under Section 482 of the CrPC, this Court would not be justified in embarking upon the inquiry whether there was a willful attempt on the part of the petitioner – accused to evade the payment of advance tax or not. The aforesaid aspects are required to be considered by the concerned Court at the time of trial. Under the circumstances, on the aforesaid ground, the impugned complaint is not required to be quashed and set aside.
[5.1] Similarly, the contention on behalf of the petitioner that subsequently the amount of income tax has been paid and therefore, to quash and set aside the impugned complaints are concerned, the aforesaid cannot be accepted. The allegations against the petitioner are with respect to nonpayment of advance tax at the relevant time and not with respect to payment of income tax subsequently. Therefore, mere subsequent payment of income tax will not absolve the petitioner for the offence punishable under Section 276C(2) of the IT Act. In any case the aforesaid questions are required to be considered by the learned trial Court at the time of trial and therefore, whether the petitioner has committed the offence or not as alleged, is required to be considered by the learned trial Court at the time of trial. No case is made out to quash and set aside the impugned complaints in exercise of powers under Section 482 of the CrPC.
[6.0] In view of the above and for the reasons stated above, present petition fails and the same deserves to be dismissed and is, accordingly, dismissed. Rule is discharged. Adinterim relief granted earlier stands vacated forthwith.
(M.R. Shah, J.) menon