VINAYCHANDRA CHANDULAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) PETITIONER has invoked S. 482 of the Cr.PC to quash the process issued by chief motropolitan magistrate, Ahmedabad, in criminal case Nos. 339/86 and 340/96. In both the petitions, petitioner as well as respondents are common. Learned advocates appearing for both the sides submitted that the point involved in the matters is common and hence both the matters are disposed of by this common judgment.

(2.) SO for as miscellaneous criminal application No. 2125 of 1989 is concerned, it arises out of proceedings initiated in the Court of chief motropolitan magistrate at Ahmedabad vide criminal case No. 339/86 by Shri M.C. Katharia, respondent No. 2 herein. It is alleged in the complaint that for the asst. year 1981 82, petitioner accused was required to file his return of income by 30th June, 1981, and was required to make payment of advance tax in 3 instalments as provided in S. 209 of the IT Act, 1961 (hereinafter referred to as 'the Act'). It is averred in the complaint that as petitioner accused failed to file return as per S. 139(1) of the Act, notice dt. 29th Aug., 1981, was issued under S. 139(2) of the Act and was served on 1st Sept., 1981. It is also stated in the complaint that petitioner furnished his return of income on 29th Sept., 1981 disclosing total income of Rs. 2,01,380. Accused paid Rs. 9,130 towards advance tax on 19th Dec., 1980 and paid self assessment tax of Rs. 1,00,914 under S. 140A of the Act on 29th Sept., 1981, i.e., after filing the return. Assessment was finalised under S. 143(3) of the Act by an order dt. 8th Dec., 1982. However, his income was determined at Rs. 2,03,523 and was required to pay tax of Rs. 1,11,445 and interest of Rs. 2,046 under S. 139(8) and Rs. 5,325 under S. 215 of the Act. Penalty under s. 271(1)(a) was also imposed on petitioner by an order and he was required to pay Rs. 4,093. The matter was carried in appeal and the order passed by the Assessing Officer was confirmed. It also appears from the complaint that there was a further penalty of Rs. 14,890 under S. 273(2)(a) of the Act. Accused was required to pay the advance tax and he did not pay as required under the Act, and therefore, complaint was filed alleging that he wilfully failed to pay the tax from 15th Dec., 1980 to 29th Sept., 1981 and thereby committed an offence punishable under S. 276C(2) of the Act.

(3.) MR . Soparkar, learned Advocate, submitted that the word "evasion" is defined in various dictionaries as under : Stroud's Judicial Dictionary : Everybody agrees that "evade" is capable of being used in two senses :