9911796707
TMI Blog2020 (11) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... hinagar for the offence punishable under section 276C(2) of the Income Tax Act, 1961 (hereinafter referred to as "the IT Act") and the proceedings initiated pursuant thereto. 2. The petitioner, an assessee of the respondent-Income Tax Department, filed his Return of Income for the A.Y. 2011-12 on 20.11.2011 declaring total income of Rs. 7,20,914/-. The case of the petitioner was taken for scrutiny assessment and vide order dated 24.03.2014 passed under section 143(3) of the IT Act, the taxable income of the petitioner was determined at Rs. 1,78,82,474/-. The assessed income comprised of (i) income from sale of land of Rs. 34,50,200/- due to disallowance of additional cost of Rs. 27,64,744/- (ii) unsecured loan / advance of Rs. 1,35,00,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the A.Y. 2011-12. The petitioner gave his reply to the said notice inter alia stating that the amount of demand has been reduced by the CIT(A) from Rs. 74,74,650/- to Rs. 15,96,800/- and that the appeal filed before the ITAT was dismissed on the ground of want of prosecution as the petitioner had not received the notice for appearance on account of change of his residential address. 2.4 Being dissatisfied with the reply submitted by the petitioner, the respondent No.2 filed complaint before the Court below alleging that the petitioner has willfully evaded payment of tax of Rs. 15,96,800/- and penalty of Rs. 8,14,180/- for the A.Y. 2011-12 and thereby, has committed offence punishable under section 276C(2) of the IT Act. The said comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be a crystallized demand. It was, accordingly, urged that the prosecution initiated by the Department is premature and deserves to be quashed and set aside. 3.1 Learned advocate Mr. Bharda further submitted that the petitioner had applied with the Department for settlement of the tax dispute in March 2020 in pursuance of the scheme declared by the Union Government. The petitioner had already deposited 85% of the total demand raised by the Department . However, ignoring the fact that the tax demand had not been crystallized as the issue was pending before the ITAT, the Department rejected the request made by the petitioner for settlement of the tax dispute under the scheme. It was contended that the ground on which the Department reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed by the Assessing Officer, the petitioner had preferred appeal before the CIT(A). The CIT(A) granted partial relief in favour of the petitioner, whereby the tax demand was reduced to Rs. 15,96,800/-. Against the order passed by the CIT(A), the petitioner had preferred appeal before the ITAT being ITA No.3604/AHD/2015. It appears that the said appeal came to be dismissed for want of prosecution vide order dated 12.01.2018. While dismissing the said appeal, the ITAT made the following observations in paragraphs - 2 & 3; "2. That the notice for hearing for 08.01.2018 was duly informed to the assessee through RPAD notice acknowledged by the assessee. However, on the date of hearing none appeared on behalf of the assessee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g before the ITAT and has not adjudicated on merits. Had it been so that the petitioner had not taken the legal recourse available for restoration of the appeal dismissed for want of prosecution on 12.01.2018, then the demand raised by the Department could be said to have been crystallized. However, in the present case, the petitioner immediately took necessary legal recourse by filing the restoration application, which came to be allowed and the appeal was restored to the file of the ITAT and is pending adjudication as on date. 7. It is true that the appeal filed by the petitioner before the ITAT was dismissed on 12.01.2018; however, it was not dismissed after being adjudicated on merits. Subsequently, the appeal has been restored to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , on merits where the allegation is found to be not sustainable at all and the person is held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue the underlying principle being the higher standard of proof in criminal cases. The yardstick would be to judge as to whether the allegation in the adjudication proceeding as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the IT Act in the adjudication proceeding, the trial of the person concerned shall be an abuse of the process of the Court. 9. In the present case, the al ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
