VIPUL AGGARWAL Vs. INCOME TAX OFFICE

JUDGEMENT

(1.) The petitioner has been arrayed as an accused in complaint case No.514952/2016 which has been filed against him as well as the company M/s ASM Traxim Pvt Ltd. for violation of Sec. 276-CC read with Sec. 278-B of the Income Tax Act, 1961. The petition has been filed for the quashing of the said complaint and all proceedings arising therefrom including the order dtd. 14/12/2017 of the ACMM (Special Acts) Central District, Tis Hazari Courts, Delhi directing the framing of charge against the petitioner and the order dtd. 14/5/2018 passed by the Special Judge (PC Act)-05 (ACB) dismissing the revision petition preferred by the petitioner against the said order dtd. 14/12/2017.

(2.) The allegation against the petitioner and the company M/s ASM Traxim Pvt. Ltd. ("Company") was that they had not filed the Income Tax Returns (ITR) for the assessment year 2012-13 by 30/9/2012 which was the last date to file the ITR. Furthermore, when a notice under Sec. 142(1) of the Income Tax Act ('IT Act' for short) to file the return on or before 2/8/2013, the returns were actually filed only on 12/8/2013. Thus, an offence had been committed under Sec. 276-CC read with Sec. 278E. A Show Cause Notice had also been issued on 20/3/2014, which was replied to by the Company. On 14/7/2014, sanction was accorded under Sec. 276-CC read with Sec. 278-B of the IT Act for prosecution of the accused. On 6/8/2014 the complaint was filed under Sec. 276-CC read with 278-B of the IT Act.

(3.) The Income Tax Department initiated prosecution against the Company and the petitioner by means of the complaint filed on 6/8/2014 and the learned Magistrate took cognizance thereof. After recording pre charge evidence, the learned ACMM (Spl. Acts), vide the orders dtd. 25/5/2017, concluded that sufficient material was available on record to establish that a case was made out against the petitioner and the Company. The learned ACMM (Spl. Acts) concluded that the contentions raised by the petitioner that there was no willful default on the part of the accused persons to file the ITR was their defence and that since the law provided for presumption (under Sec. 278-E) of the culpable mental state of the accused, and since the presumption could be rebutted only by the accused during trial, there was sufficient material to frame the charge. It framed charges under Sec. 276-CC read with Sec. 278-B of the IT Act against both, the Company and the petitioner.