TMI Blog2022 (2) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... y on the basis of difference of opinion as to the estimates and not a case of concealment of income or even furnishing of inaccurate particulars of income. To attract the provisions of Section 276C prosecution has to establish that the accused willfully attempted in any manner to evade any tax, penalty or interest chargeable or imposable under the Act. To attract the provisions of Section 277 of the Act, the prosecution is required to establish that the accused made a statement in any verification under the Act, which he either knows or believes to be false, or does not believe to be true. Presumption under Section 132(4)(a) of the Act is with regard to the books of account or the other documents found in possession of a person from w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings in E.O.C.C.Nos.582 583 of 2017, pending on the file of the Additional Chief Metropolitan Magistrate Court, Economic Offence II, Egmore, Chennai/trial Court. 2.Since the petitioner and the respondent are one and the issues are identical in both the petitions, this Court decides to dispose of the same, by way of common order. 3.Gist of the case in E.O.C.C.No.582 of 2017 is that the petitioner in his Income Tax Return for the Assessment Year 2007-08 admits a loss of ₹ 2,87,82,522/-. The respondent conducted search and seizure operation under Section 132 of the Income Tax Act, 1961 (Hereinafter referred to as 'Act') on 29.01.2010. During the course of search operation, it was found that the petitioner was not maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner paid the penalty on 23.06.2014. 4.Gist of the case in C.C.No.583 of 2017 is that the petitioner filed his return of income for the Assessment Year 2008-09 admitting a total income of ₹ 31,31,710/- after setting off of brought forward business loss of ₹ 2,86,23,462/- related to the Assessment year 2007-08. During the search and seizure operation under Section 132 of the Act, it was found that the petitioner not maintained proper and complete books of account for his business. Hence, a notice under Section 153A of the Act was issued to the petitioner for the Assessment Year 2008-09 on 09.03.2011. In response to the notice, the petitioner filed his return of income for the Assessment Year 2008-09 on 14.12.2011 admittin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed by the Commissioner of Income Tax Appeals on account of non-maintenance of proper books of account as the expenditure could not be verified and it is pertinent to note that there was no tax chargeable or payable in the Assessment Proceedings by the Assessing Officer or in the Appeals and there was no evasion of tax. He further submitted that the difference in loss was purely on account of disallowance of expenditures, for which, the receipts could not be verified with the books of account and the penalty levied was not for any wilful attempt to evade tax or interest. He further submitted that after three years of payment of penalty, the Assessment Proceedings attained the finality and penalty paid in the year 2014. While that bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re liability stood discharged, the prosecution could not continue. Hence, he prayed for quashing of the proceedings against the petitioner. 9.Ms.M.Sheela, learned Special Public Prosecutor for Income Tax Department, appearing for the respondent submitted that after obtaining the sanction for prosecution from the concerned authority on 20.09.2017, the complaints filed under Section 276(c)(1) and 277 of the Act, against the petitioner. The petitioner for the Assessment Years 2007-08 and 2008- 09 have filed his Income Tax Return admitting a loss, which could not be corroborated and sustained in view of the petitioner not maintaining the books of account for his business. The respondent conducted search operation. During search, available do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner filed revised Income Tax Returns and also paid the penalty. The deletions made in the assessment was purely on the basis of difference of opinion as to the estimates and not a case of concealment of income or even furnishing of inaccurate particulars of income. To attract the provisions of Section 276C of the Act, the prosecution has to establish that the accused willfully attempted in any manner to evade any tax, penalty or interest chargeable or imposable under the Act. To attract the provisions of Section 277 of the Act, the prosecution is required to establish that the accused made a statement in any verification under the Act, which he either knows or believes to be false, or does not believe to be true. 12.The presumptio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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