Dr. B. Siva Sankara Rao, J. - (1.) This petition is filed under Sec. 482 of the Code of Criminal Procedure (for short, 'the Cr.P.C.') by the Petitioner -Accused to quash the proceedings in C.C. No. 103 of 2014 on the file of the learned Special Judge for Economic offences, Hyderabad, taken cognizance for the offences punishable under Sec. 276C(2) of the Income -tax Act, 1961 (for short, 'the Act') amended from time to time, on the complaint under Sec. 190 read with 200 Cr.P.C. of the 1st respondent/The Deputy Commissioner of Income -tax, Circle -11(1) Hyderabad. The petitioner is the sole accused in the Calander Case supra. The 1st respondent laid the complaint with the prior sanction under Sec. 279(1) of the Act for his prosecution, obtained from the Commissioner of Income -tax, Hyderabad vide order dated 27.03.2014. The factual background is that the petitioner filed E -return for the assessment year 2012 -13 of dated 30.09.2012 (Section 139D makes provision for filing of E -return from the Rules provided by the Board). It is self -declaring return of Income of Rs. 2,10,26,628.00 (Section 140A provides for self -assessment whereunder income tax is payable on the basis of return required to be furnished under Sec. 115 (wd) or (wh) or 139 or 142 or 148 or 153A or 158B, 158C as the case may be. After taking into account the amount of tax if not already paid under the Act, any tax deducted or collected at source, any relief of tax or deduction of tax claimed under Sec. 90 or 91 on account of tax paid outside India, any relief of tax claimed under Sec. 90A on account of tax paid in any specified territory outside India and any tax claimed to be set off as per Sec. 115JA or ID, the assessee shall be liable to pay such tax together with interest payable under the provisions of the Act, for any delay in furnishing return or any default or delay in payment of advance tax, before furnishing return and the return shall be accompanied by proof of payment of such tax and interest. As per the Explanation II of Sec. 141 A(i), where the amount paid by the assessee under the sub -section falls short of the aggregate of the tax interest as aforesaid, the amount so paid shall be first adjusted towards the interest payable and the balance towards the tax payable. As per the sub -section (2) of 141A after regular assessment under Ss. 115 (wf) or 143 or 144 or 153A or 158B, 158C, has been made, any amount paid under Sub -section (1) supra, shall be deemed to have been paid towards said regular (recurring) assessment or assessment as the case may be. As per sub -Section (3) of Sec. 141A if the assessee fails to pay the whole or any part of such tax or interest or both in accordance with the sub -Section (1) supra, he shall without prejudice to any other Consequences which he cannot incur, be deemed to be an assessee in default, in respect of the tax or interest or both remaining unpaid and all the provisions of the Act shall apply accordingly.
(2.) It is pursuant to the provision for the income declared of Rs. 2,10,26,628.00 the tax and interest shown payable in the return was Rs. 68,28,133/ - and there was TDS of Rs. 10,12,293/ - that was the only payment as per the E -return supra and the assessee later paid Rs. 2 lakhs on 31.12.2015 and even therefrom the balance tax payable is Rs. 58,15,840/ - that was not paid while filing of the return of income though it was required to be. On the E -return filed by the accused as per the procedure, any amounts paid before or after receipt of intimation from the Central Processing Centre (for short, 'CPC'), Bangalore, under Sec. 143(1) of the Act, the application has to be made under Sec. 154 of the Act to the C.P.C. for enabling e -processing Centre to deduct the amount paid and the accused -assessee did not make any such application even the CPC intimated under Sec. 143(1) by determining net amount payable Rs. 63,19,840/ - including interest under Sec. 234B and C. In fact, 2 lakhs if deducted out of Rs. 58,15,840/ - the amount will be with little variance and he could have been applied under Sec. 154 of the Act, to arrive a correct figure. The accused -assessee failed to pay the admitted tax, as such notice under Sec. 221(1) of the Act, was issued to him on 10.02.2014 by the complainant -DCIT to produce the details of tax paid if it has already been paid or to give reasons why penalty should not be levied under Sec. 221(1) of the Act for the failure to pay the demand raised in time. In response to it, the accused -assessee filed a letter dated 21.02.2014 stating that he did contracts of the State Government for which the tax due shown in the assessment and he did not pay self -assessment tax as he did not receive the bills from the State Government and he will pay the tax dues as soon as the amounts received from the Government.
(3.) Pursuant to which the accused -assessee was summoned under Sec. 131 of the Act and after his appearance, statement was recorded on 28.02.2014 regarding pending tax dues, that too, he received 14.25 crores in the financial year 2011 -12 for the work done to the Government and his statement in this regard was he received but undisputedly utilized for business expenditure with intent to pay the tax after receiving the balance dues from the Government. In fact Sec. 140(A) of the Act referred supra no way enables to delay or postpone the payment but for to pay whatever payable while furnishing return if not paid before as advance tax. It is therefrom the complaint is maintained with the permission obtained supra for the offence under Sec. 276C(2) of the Act saying the tax due but for more than a year without any valid reasons even received substantial amounts for the contract works done. In the complaint it is averred from para -10 onwards pursuant to the above that the assessee, having received more than 14.25 crores for the works done though shown or claimed some balance still due for the works done, he has shown profit of 2,10,26,628/ - for the assessment year -2012 -13 (financial year 2011 -12) he should have planned to pay the advance tax which he did not and at least with the return of self -assessment that not even paid though required to be as per Sec. 140(A) of the Act and the non -payment even after issuance of notice under Sec. 221(1) of the Act, claimed is nothing but default and consequently a penalty order was passed on 05.03.2014 imposing penalty of Rs. 6,31,389/ - and show cause notice for initiation of prosecution under Sec. 276C(2) of the Act dated 18.03.2014 was served on him and in his letter to it dated 24.03.2014 he responded by requesting not to take action against him by submitting that he can make payment as and when he receives the contract bills. It is averred in the complaint that this is the roose for the past two years as explanation receiving from him without payment even received substantial amount of contract bills and it is manifested that he willfully evaded the payment of the tax as per the provisions of the Act and committed offence punishable under Sec. 276C(2) of the Act, with deliberate default in not clearing tax dues that too, even after received of notice under Sec. 221(1) of the Act. It is averred that as per Sec. 278(e) of the Act, the Court shall presume a culpable mental status on the part of the accused, hence sought for taking the complaint on file to punish the accused according to law. It was filed of dated 28.03.2014 and the learned Magistrate under Sec. 200 of Cr.P.C., from the complaint filed by the public servant (2nd respondent -DCIT) referring to the enclosures taken cognizance of the case and it is pursuant to the summons he filed the quash petition.;