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2022 (7) TMI 799 - MADRAS HIGH COURTProsecution u/s 276CC and 276C (1) - criminal prosecution on alleged evasion of Tax - right to get offence compounded - difference between the income declared by the assessee and the assessment made by the Department for each Financial Years - HELD THAT:- The self assessment tax on declared income was paid only after initiation of enquiry proceedings that too concealing substantial part of the income. In such circumstances, several lakh of rupees had been evaded with willful intention. This Court is of the view that there is enough materials to proceed against the petitioner for non-filing of Return in time which is punishable u/s 276CC and for filing the Return belatedly with suppressed income, which is punishable under Section 276C(1). Since Section 278E gives a presumption to lay prosecution in case of non-filing of Return within the time limit and suppression of income in the Return filed is with malafide intention to evade Tax, the Court cannot by exercising its power under Section 482 of Cr.P.C., quash the proceedings presuming the contrary. The malafide projected in these petitions does not carry any merit, since the Department has caused notice to the assessee and the representative of the petitioner and participated and given an explanation which is found not satisfactory leading to launching the prosecution. The absence of assessee in India or the communication gap between herself and her representative cannot be a ground to quash the prosecution. Further compounding offence under IT Act is not an absolute right vested in the assessee. The compounding of cases based on facts and merits of each case where the assessee disclose the true and actual income but file it belatedly cannot be equated to the case where the assessee undisclosed the true and actual income also files the returns belatedly. Hence this court holds no merit in these petitions, in view of the presumption clause. Therefore, these Criminal Original Petitions are dismissed.
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