HEMAL MANUBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this petition filed under section 482 of the Code of Criminal Procedure, the petitioner has prayed to quash and set aside the complaint being registered as Criminal Case No.1622 of 2019 with the Court of learned 4th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Gandhinagar 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/- taxed as an income from the sale of property and (iii) unexplained cash credit of Rs.8,96,819/-.

(3.) Mr. Zubin Bharda, learned advocate for the petitioner-assessee, submitted that the prosecution launched against the petitioner under section 276C(2) of the IT Act is premature inasmuch as the appeal preferred before the ITAT had been restored to file and is pending. In the reply dated 29.01.2019, the petitioner had informed the Department that the appeal filed by him before the ITAT had been dismissed on account of the fact that the notice for hearing issued by the ITAT was not served upon him as he had changed his place of residence. The petitioner had informed the Department that he would be taking necessary recourse for restoration of the appeal before the ITAT no soon as the copy of the order passed by the ITAT dismissing his appeal for want of prosecution is received by him and till that time, he requested the Department not to initiate any criminal prosecution against the petitioner as he was genuinely pursuing the appeal before the ITAT. It was contended that the petitioner had filed an application for restoration of the appeal, which came to be allowed and the appeal filed by him has been restored to the file of the ITAT. As on today, the said appeal is pending. Hence, the demand raised by the Department is still the subject matter of adjudication of the ITAT and cannot be considered 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.