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2022 (8) TMI 459 - HC - Income TaxProsecution u/s 276-CC (ii) - evasion of tax - Delay in filing return - Income-tax Department had desired petitioner’s prosecution for 72 days’ delay in filing the return - HELD THAT:- There is not even a whisper of evasion of income-tax, whereas the learned trial Court, claiming to have perused the record, has observed that the accused (petitioner herein) has not filed his return of income for 2013-14 and has evaded the income-tax. In the opinion of this Court, the order of the cognizance shows clear misreading of the complaint and the same suffers from manifest error of law, for which it is liable to be quashed and set aside. Also correct in saying that the petitioner ought to have preferred a revision petition under Section 397 of the Code but then, considering that the petitioner and his group has filed about 80 petitions of identical nature, relegating the petitioners to file revision petition(s), that too when the order impugned suffers from palpable error of law and facts, would lead to multiplicity of litigation and passing of dockets from this Court to the Revisional Court. The preliminary objection raised by the Income-Tax Department is thus, over-ruled. Thus considering discrepancy and considering that not only the notice issued to the petitioner before granting prosecution sanction, even the complaint filed by the Department alleges delay in filing return, while eliciting prosecution under Section 276-CC (ii) of the Act of 1961, this Court is of the view that the cognizance, which has been taken for evasion of tax is ex-facie erroneous and deserves to be quashed and set aside. The order granting prosecution sanction has neither been challenged in the present petition nor can the same be permitted to be questioned before this Court in its jurisdiction under Section 482 of the Code. Because, the act of granting prosecution sanction is an administrative or statutory exercise of powers. Instant petition so also those enumerated in the appended scheduled are allowed. The cognizance order in each of the case is hereby quashed and set aside.
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