Rajasthan High Court - JodhpurJai Prakash vs Income Tax Department on 4 August, 2022Author:Dinesh MehtaBench:Dinesh Mehta(1 of 9)                    [CRLMP-3106/2022]\n\n\n     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT\n                      JODHPUR\n              S.B. Criminal Misc(Pet.) No. 3106/2022\n\n Ashish Agarwal S/o Shri Hariram Agarwal, Aged About 36 years,\n R/o Bachhawaton Ka Mohalla, Bikaner (Raj.)----Petitioner\n                                     Versus\n Income     Tax      Department,            through          Assistant    Income\n Commissioner, Central Circle, Income Tax Department, Bikaner.----Respondents\n\n\n For Petitioner(s)         :    Mr. Mahaveer Bishnoi with\n                                Mr. Jayram Saran\n For Respondent(s)         :    Mr. K.K. Bissa\n\n\n\n                     JUSTICE DINESH MEHTA\n\n                                     Order\n\n04/08/20221.   Instant petition and those mentioned in the Schedule,\n\ninvolve identical issue of law and facts, hence all of them are\n\nbeing decided by this common order. The facts of S.B. Criminal\n\nMisc. Petition No.3106/2022 (Ashosh Agarwal Vs. Income Tax\n\nDepartment) are being taken into consideration for the purpose of\n\ndisposal of these cases.2.   The petitioner is an assessee under theIncome-Tax Act,\n\n1961(hereinafter referred to as 'the Act of 1961') and is having\n\nPermanent Account No.AGAPA5596A.3.   A search and seizure was conducted at petitioner's business\n\nand residential premises on 24.02.2016, in furtherance whereof, a\n\nnotice underSection 153-Aof the Act of 1961, requiring him to\n\nfile return of income-tax within 30 days came to be issued.(Downloaded on 08/08/2022 at 08:36:00 PM)(2 of 9)                   [CRLMP-3106/2022]4.   It is the case of the petitioner that on receipt of the notice,\n\nthe petitioner had sent a letter dated 28.07.2016 and requested\n\nthe Dy. Commissioner, Income-tax to provide copies of the\n\nstatements recorded during the course of search and other\n\nrelevant documents so that a return as demanded underSection\n\n153-Aof the Act of 1961 can be filed.5.   Later on, the petitioner filed the return of income on\n\n04.07.2016.6.   The Commissioner, Income-tax (Central) thereafter issued a\n\nshow cause notice dated 28.02.2017 underSection 279(1)of the\n\nAct of 1961 and asked him why not prosecution underSection\n\n276-CCof the Act of 1961, for failure to file return of Income-tax\n\nin time be launched against him.7.   In response to the show cause notice aforesaid, the\n\npetitioner filed a reply and explained the delay of 72 days inter\n\nalia contending that there was no intentional delay in filing the\n\nreturn and the petitioner was prevented by sufficient cause, as the\n\nrequisite documents were not supplied to him despite being\n\ndemanded. It was also stated that the demand of tax is meagre.\n\nAnd hence, the prosecution sanction be not granted.8.   The petitioner did not hear anything until he came to receive\n\nsummons issued by the Additional Chief Metropolitan Magistrate,\n\nJodhpur Metro (hereinafter referred to as 'the trial Court')\n\nrequiring the petitioner to appear on 28.05.2022.9.   On inquiry being made, the petitioner came to know that the\n\ntrial Court had taken cognizance of offence underSection 276-CCof the Act of 1961 prima facie finding to be a case made out\n\nagainst the petitioner.(Downloaded on 08/08/2022 at 08:36:00 PM)(3 of 9)                     [CRLMP-3106/2022]10.    The petitioner has assailed the aforesaid order dated\n\n21.02.2018, whereby cognizance has been taken against him so\n\nalso the proceedings pending before the trial Court.11.    Learned counsel for the petitioner highlighted the fact that\n\nthe petitioner had furnished his return of income for the\n\nAssessment Year 2013-14 and it was only pursuant to search and\n\nseizure,     which    was     conducted         at    petitioner's      premises      on\n\n24.02.2016, the Income-Tax Department issued a notice underSection 153-Aof the Act of 1961 to the petitioner and asked him\n\nto furnish return (revised return).12.    Mr.   Bishnoi,    learned       counsel,       invited       Court's    attention\n\ntowards the complaint submitted by the Income-Tax Department\n\nand pointed out that the department had prayed for petitioner's\n\nprosecution for late filing of return, as provided underSection\n\n276-CC(ii)of the Act of 1961, whereas the trial Court has treated\n\nit to be a case of evasion of tax and has taken cognizance as such.\n\nHe argued that the order taking cognizance is mechanical and\n\nwithout application of mind to the facts of the case.13.    He navigated the Court through the short order by which\n\ncognizance has been taken and submitted that the trial Court has\n\nfound the case to be a case of evasion of income-tax, whereas the\n\nfacts pleaded were otherwise. While submitting that the return of\n\nincome-tax was ultimately filed with a small delay of 72 days,\n\nlearned counsel emphasized that no additional demand was raised\n\nagainst the petitioner let-alone penalty, and, therefore, it cannot\n\nbe said that the petitioner had, in any manner, evaded income-\n\ntax.14.    He    argued      that      since      the      departmental           authorities\n\nthemselves have found that no income-tax was evaded by the(Downloaded on 08/08/2022 at 08:36:00 PM)(4 of 9)                   [CRLMP-3106/2022]\n\n\n\npetitioner, neither the learned Commissioner of Income-tax should\n\nhave accorded prosecution sanction nor should the trial Court\n\nhave taken cognizance against the petitioner.15.   Learned counsel submitted that immediately on receipt of\n\nthe notice underSection 153-Aof the Act of 1961, the petitioner\n\nhad requested the Dy. Commissioner, Central Circle, Bikaner to\n\nprovide copies of the statements recorded during the search\n\nproceedings so that the return could be filed and until the same\n\nwere provided, the return could not be filed. The petitioner was\n\nnot guilty of filing the return belatedly for which, he can be\n\nprosecuted, vehemently contended Mr. Bishnoi.16.   Though copy of the order granting prosecution has not been\n\nplaced on record, learned counsel argued that the Principal\n\nCommissioner of Income-tax has proceeded arbitrarily and has\n\nadopted a rather strict approach and granted permission to\n\nprosecute. He prayed that prosecution sanction be quashed.17.   Mr. Bissa, learned counsel appearing for the Department, at\n\nthe outset raised a preliminary objection that against the\n\nimpugned order dated 21.02.2018, whereby the trial Court has\n\ntaken cognizance, the petitioner is required to file a revision\n\npetition as provided underSection 397of the Code of Criminal\n\nProcedure and invoking inherent jurisdiction of this Court under\n\nSection 482 of the Code directly is not proper.18.   While emphasizing that the cognizance has been taken underSection 276-CCof the Act of 1961, which includes evasion of\n\nincome-tax so also delay in filing return, learned Standing Counsel\n\nsubmitted that the grounds which the petitioner has canvassed\n\nbefore this Court, can very well be raised before the trial Court at(Downloaded on 08/08/2022 at 08:36:00 PM)(5 of 9)                        [CRLMP-3106/2022]\n\n\n\nthe time of framing of the charges. He argued that no interference\n\nis warranted at this stage.19.    Mr. Bissa, learned counsel further argued that admittedly\n\nthere is a delay of 72 days in filing the return. While contending\n\nthat the provisions ofSections 279(1)and276CCof the Act of\n\n1961 are mandatory, he argued that the prosecution in question\n\nhas been rightly launched against the petitioner.20.    He      argued   that      unless       the     order        of    the   Principal\n\nCommissioner, Income-tax, granting prosecution is challenged, no\n\nfault can be found in the proceedings being undertaken by the\n\ntrial Court including the order by which the cognizance has been\n\ntaken.21.    Heard learned counsel for the parties.22.    A simple look at the complaint filed by the respondent-\n\nIncome-tax Department (Annex.2) leaves no room for ambiguity\n\nthat   the     Department       wanted        petitioner's          prosecution    underSection 276-CC(ii)of the Act of 1961, as is evident from the\n\ncaption of the application. If the application is read, it is apparent\n\nthat     the    Income-tax       Department           had      desired       petitioner's\n\nprosecution for 72 days' delay in filing the return. There is not\n\neven a whisper of evasion of income-tax, whereas the learned trial\n\nCourt, claiming to have perused the record, has observed that the\n\naccused (petitioner herein) has not filed his return of income for\n\n2013-14 and has evaded the income-tax.23.    In the opinion of this Court, the order of the cognizance\n\nshows clear misreading of the complaint and the same suffers\n\nfrom manifest error of law, for which it is liable to be quashed and\n\nset aside.(Downloaded on 08/08/2022 at 08:36:00 PM)(6 of 9)                    [CRLMP-3106/2022]24.   Mr. Bissa may be correct in saying that the petitioner ought\n\nto have preferred a revision petition under Section 397 of the\n\nCode but then, considering that the petitioner and his group has\n\nfiled about 80 petitions of identical nature, relegating the\n\npetitioners to file revision petition(s), that too when the order\n\nimpugned suffers from palpable error of law and facts, would lead\n\nto multiplicity of litigation and passing of dockets from this Court\n\nto the Revisional Court.25.   The   preliminary    objection        raised      by     the   Income-Tax\n\nDepartment is thus, over-ruled.26.   In view of the aforesaid discrepancy and considering that not\n\nonly the notice issued to the petitioner before granting prosecution\n\nsanction, even the complaint filed by the Department alleges delay\n\nin filing return, while eliciting prosecution under Section 276-CC(ii) of the Act of 1961, this Court is of the view that the\n\ncognizance, which has been taken for evasion of tax is ex-facie\n\nerroneous and deserves to be quashed and set aside.27.   The order granting prosecution sanction has neither been\n\nchallenged in the present petition nor can the same be permitted\n\nto be questioned before this Court in its jurisdiction under Section\n\n482 of the Code. Because, the act of granting prosecution sanction\n\nis an administrative or statutory exercise of powers.28.   In view of the discussion foregoing, instant petition so also\n\nthose enumerated in the appended scheduled are allowed. The\n\ncognizance order in each of the case is hereby quashed and set\n\naside.29.   The petitioners shall appear before the trial Court on\n\n03.09.2022 either personally or through counsel.(Downloaded on 08/08/2022 at 08:36:00 PM)(7 of 9)                   [CRLMP-3106/2022]30.   The trial Court shall consider the submissions of the Income-\n\ntax Department/complainant so also present petitioners (accused)\n\nand then, take into account and then pass a speaking order,\n\nagainst which remedies of both the parties shall stand reserved.31.   The petitioners shall be free to challenge order granting\n\nprosecution sanction in accordance with law, if so advised.32.   The stay applications also stand disposed of accordingly.(DINESH MEHTA),J\n 321-402-skm/-(Downloaded on 08/08/2022 at 08:36:00 PM)(8 of 9)                   [CRLMP-3106/2022]\n\n\n\n                                   Schedule\n\nS. No.   CRMLP No.                Petitioner(s)                     Respondent(s)\n   1     3885/2022   Ashish Agarwal                               Income Tax Deptt.\n   2     3886/2022   Ashish Agarwal                               Income Tax Deptt.\n   3     3887/2022   Ashish Agarwal                               Income Tax Deptt.\n   4     3888/2022   Ashish Agarwal                               Income Tax Deptt.\n   5     3890/2022   Ashish Agarwal                               Income Tax Deptt.\n                     M/s Bhikharam Chandmal Bhujiawala\n  6      3911/2022   Pvt. Ltd. & Ors.                             Income Tax Deptt.\n                     M/s Bhikharam Chandmal Bhujiawala\n  7      3912/2022   Pvt. Ltd. & Ors.                             Income   Tax   Deptt.\n  8      3918/2022   Anand Agarwal                                Income   Tax   Deptt.\n  9      3919/2022   Anand Agarwal                                Income   Tax   Deptt.\n 10      3920/2022   Anand Agarwal                                Income   Tax   Deptt.\n 11      3921/2022   Anand Agarwal                                Income   Tax   Deptt.\n 12      3922/2022   Anand Agarwal                                Income   Tax   Deptt.\n 13      3923/2022   Anand Agarwal                                Income   Tax   Deptt.\n                     M/s Bhikharam Chandmal Bhujiawala\n 14      3924/2022   Pvt. Ltd. & Ors.                             Income Tax Deptt.\n                     M/s Bhikharam Chandmal Bhujiawala\n 15      3925/2022   Pvt. Ltd. & Ors.                             Income Tax Deptt.\n                     M/s Bhikharam Chandmal Bhujiawala\n 16      3926/2022   Pvt. Ltd. & Ors.                             Income Tax Deptt.\n                     M/s Bhikharam Chandmal Bhujiawala\n 17      3927/2022   Pvt. Ltd. & Ors.                             Income   Tax   Deptt.\n 18      3928/2022   Kishore Kumar Agarwal                        Income   Tax   Deptt.\n 19      3929/2022   Mohini Food Product Pvt. Ltd. & Ors.         Income   Tax   Deptt.\n 20      3930/2022   Mohini Food Product Pvt. Ltd. & Ors.         Income   Tax   Deptt.\n 21      3931/2022   Mohini Food Product Pvt. Ltd. & Ors.         Income   Tax   Deptt.\n 22      3932/2022   Mohini Food Product Pvt. Ltd. & Ors.         Income   Tax   Deptt.\n 23      3933/2022   Kishore Kumar Agarwal                        Income   Tax   Deptt.\n 24      3934/2022   Kishore Kumar Agarwal                        Income   Tax   Deptt.\n 25      3935/2022   Mohini Food Product Pvt. Ltd. & Ors.         Income   Tax   Deptt.\n 26      3936/2022   Kishore Kumar Agarwal                        Income   Tax   Deptt.\n 27      3937/2022   Mohini Food Product Pvt. Ltd. & Ors.         Income   Tax   Deptt.\n 28      3938/2022   Kishore Kumar Agarwal                        Income   Tax   Deptt.\n 29      3939/2022   Kishore Kumar Agarwal                        Income   Tax   Deptt.\n 30      3940/2022   M/s Sunshine Food Products & Ors.            Income   Tax   Deptt.\n 31      3941/2022   Smt. Ratan Devi Agarwal                      Income   Tax   Deptt.\n 32      3942/2022   M/s Sunshine Food Products & Ors.            Income   Tax   Deptt.\n 33      3943/2022   Smt. Ratan Devi Agarwal                      Income   Tax   Deptt.\n 34      3945/2022   Smt. Ratan Devi Agarwal                      Income   Tax   Deptt.\n 35      3946/2022   M/s Sunshine Food Products & Ors.            Income   Tax   Deptt.\n 36      3947/2022   Smt. Ratan Devi Agarwal                      Income   Tax   Deptt.\n 37      3948/2022   Smt. Ratan Devi Agarwal                      Income   Tax   Deptt.\n 38      3949/2022   M/s Sunshine Food Products & Ors.            Income   Tax   Deptt.\n 39      3950/2022   Smt. Ratan Devi Agarwal                      Income   Tax   Deptt.\n 40      3951/2022   M/s Sunshine Food Products & Ors.            Income   Tax   Deptt.\n 41      3952/2022   Jai Prakash Agarwal                          Income   Tax   Deptt.\n 42      3953/2022   Jai Prakash Agarwal                          Income   Tax   Deptt.\n 43      3954/2022   M/s Sunshine Food Products & Ors.            Income   Tax   Deptt.\n 44      3955/2022   Hari Ram Agarwal                             Income   Tax   Deptt.\n 45      3956/2022   Hari Ram Agarwal                             Income   Tax   Deptt.\n 46      3957/2022   Hari Ram Agarwal                             Income   Tax   Deptt.\n 47      3958/2022   Hari Ram Agarwal                             Income   Tax   Deptt.\n 48      3959/2022   Jai Prakash Agarwal                          Income   Tax   Deptt.\n 49      3961/2022   Hari Ram Agarwal                             Income   Tax   Deptt.(Downloaded on 08/08/2022 at 08:36:00 PM)(9 of 9)                   [CRLMP-3106/2022]\n\n                                   50   3962/2022   Jai Prakash Agarwal                          Income   Tax   Deptt.\n                                   51   3963/2022   Hari Ram Agarwal                             Income   Tax   Deptt.\n                                   52   3964/2022   Jai Prakash Agarwal                          Income   Tax   Deptt.\n                                   53   3966/2022   Navratan Agarwal                             Income   Tax   Deptt.\n                                   54   3967/2022   Jai Prakash Agarwal                          Income   Tax   Deptt.\n                                   55   3968/2022   Navratan Agarwal                             Income   Tax   Deptt.\n                                   56   3969/2022   Navratan Agarwal                             Income   Tax   Deptt.\n                                   57   3970/2022   Smt. Lalita Devi Agarwal                     Income   Tax   Deptt.\n                                   58   3971/2022   Navratan Agarwal                             Income   Tax   Deptt.\n                                   59   3972/2022   Smt. Lalita Devi Agarwal                     Income   Tax   Deptt.\n                                   60   3973/2022   Smt. Lalita Devi Agarwal                     Income   Tax   Deptt.\n                                   61   3974/2022   Navratan Agarwal                             Income   Tax   Deptt.\n                                   62   3975/2022   Smt. Lalita Devi Agarwal                     Income   Tax   Deptt.\n                                   63   3976/2022   Smt. Lalita Devi Agarwal                     Income   Tax   Deptt.\n                                   64   3977/2022   Smt. Lalita Devi Agarwal                     Income   Tax   Deptt.\n                                                    M/s Bhikharam Chandmal Marketing\n                                   65   3978/2022   Pvt. Ltd.                                    Income Tax Deptt.\n                                                    M/s Bhikharam Chandmal Marketing\n                                   66   3979/2022   Pvt. Ltd.                                    Income Tax Deptt.\n                                                    M/s Bhikharam Chandmal Marketing\n                                   67   3980/2022   Pvt. Ltd.                                    Income Tax Deptt.\n                                                    M/s Bhikharam Chandmal Marketing\n                                   68   3981/2022   Pvt. Ltd.                                    Income Tax Deptt.\n                                   69   3982/2022   Smt. Saroj Devi Agarwal                      Income Tax Deptt.\n                                                    M/s Bhikharam Chandmal Marketing\n                                   70   3983/2022   Pvt. Ltd.                                    Income Tax Deptt.\n                                                    M/s Bhikharam Chandmal Marketing\n                                   71   3984/2022   Pvt. Ltd.                                    Income   Tax   Deptt.\n                                   72   3985/2022   Smt. Saroj Devi Agarwal                      Income   Tax   Deptt.\n                                   73   3986/2022   Smt. Saroj Devi Agarwal                      Income   Tax   Deptt.\n                                   74   3987/2022   Smt. Saroj Devi Agarwal                      Income   Tax   Deptt.\n                                                    M/s Navhari Food Products Pvt. Ltd. &\n                                   75   3988/2022   Ors.                                         Income Tax Deptt.\n                                   76   3989/2022   Smt. Saroj Devi Agarwal                      Income Tax Deptt.\n                                                    M/s Navhari Food Prodcuts Pvt. Ltd. &\n                                   77   3990/2022   Ors.                                         Income Tax Deptt.\n                                                    M/s Navhari Food Prodcuts Pvt. Ltd. &\n                                   78   3991/2022   Ors.                                         Income Tax Deptt.\n                                                    M/s Navhari Food Prodcuts Pvt. Ltd. &\n                                   79   3992/2022   Ors.                                         Income Tax Deptt.\n                                                    M/s Navhari Food Prodcuts Pvt. Ltd. &\n                                   80   3993/2022   Ors.                                         Income Tax Deptt.\n                                                    M/s Navhari Food Prodcuts Pvt. Ltd. &\n                                   81   3994/2022   Ors.                                         Income Tax Deptt.(Downloaded on 08/08/2022 at 08:36:00 PM)Powered by TCPDF (www.tcpdf.org)