SAROJ DEVI AGARWAL V. INCOME TAX DEPARTMENT

CRLMP/5042/2021

AI Insights

The case involves Saroj Devi Agarwal, who was accused by the Income Tax Department of India through the Assistant Income Tax Commissioner, Central Circle, Bikaner, of delaying the filing of her income tax return. The controversy was part of a larger set of similar cases, previously addressed in Ashish Agarwal Vs. Income Tax Department. The core legal issue revolved around the misapplication of Section 276-CC(ii) of the Income Tax Act, 1961, which pertains to the prosecution for willful failure to file a return of income. The High Court, referencing its earlier decision in the Ashish Agarwal case, found that the prosecution's basis for cognizance was erroneous as it incorrectly alleged tax evasion instead of addressing the delay in filing, which was the actual complaint.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 748068 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 25-08-2022
• Assessment Year: misc
• Other Referred Cases: Ashish Agarwal Vs. Income Tax Department; (S.B. Criminal Misc. Petition No.3106/2022)
• Laws Referred To: Income Tax Act of 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: K K BISSA
• Assessee Lawyers: MAHAVEER BISHNOI
• Keywords: Cognizance; Delay in filing return; Income Tax; Prosecution; Quashed
• Section: 276-CC(ii)

Judgement Text

"HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 5042/2021 Saroj Devi Agarwal W/o Shri Hariram Agarwal, Aged About 57 Years, R/o Bachhawaton Ka Mohalla, Bikaner (Raj.) ----Petitioner Versus Income Tax Department, Through Assistant Income Tax Commissioner, Central Circle, Income Tax Department, Bikaner. ----Respondent For Petitioner(s) : Mr. Mahaveer Bishnoi. For Respondent(s) : Mr. K.K. Bissa. HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Order 25/08/2022 Learned counsel for both the parties jointly submit that the present petition is a part of the controversy, which has already been decided by this Hon’ble Court in Ashish Agarwal Vs. Income Tax Department; (S.B. Criminal Misc. Petition No.3106/2022) vide order dated 04.08.2022. The relevant portion of the order reads as follows: “22. A simple look at the complaint filed by the respondent- Income-tax Department (Annex.2) leaves no room for ambiguity that the Department wanted petitioner’s prosecution under Section 276- CC(ii) of the Act of 1961, as is evident from the caption of the application. If the application is read, it is apparent that the Income- tax Department had desired petitioner’s prosecution for 72 days’ delay in filing the return. There is not even a whisper of evasion of income-tax, whereas the learned trial Court, claiming to have perused the record, has observed that the accused (petitioner herein) has not filed his return of income for 2013-14 and has evaded the income-tax. (2 of 3) [CRLMP-5042/2021] 23. In the opinion of this Court, the order of the cognizance shows clear misreading of the complaint and the same suffers from manifest error of law, for which it is liable to be quashed and set aside. 24. Mr. Bissa may be correct in saying that the petitioner ought to have preferred a revision petition under Section 397 of the Code but then, considering that the petitioner and his group has filed about 80 petitions of identical nature, relegating the petitioners to file revision petition(s), that too when the order impugned suffers from palpable error of law and facts, would lead to multiplicity of litigation and passing of dockets from this Court to the Revisional Court. 25. The preliminary objection raised by the Income-Tax Department is thus, over-ruled. 26. In view of the aforesaid discrepancy and considering that not only the notice issued to the petitioner before granting prosecution sanction, even the complaint filed by the Department alleges delay in filing return, while eliciting prosecution under Section 276-CC (ii) of the Act of 1961, this Court is of the view that the cognizance, which has been taken for evasion of tax is ex-facie erroneous and deserves to be quashed and set aside. 27. The order granting prosecution sanction has neither been challenged in the present petition nor can the same be permitted to be questioned before this Court in its jurisdiction under Section 482 of the Code. Because, the act of granting prosecution sanction is an administrative or statutory exercise of powers. 28. In view of the discussion foregoing, instant petition so also those enumerated in the appended scheduled are allowed. The cognizance order in each of the case is hereby quashed and set aside. 29. The petitioners shall appear before the trial Court on 03.09.2022 either personally or through counsel. 30. The trial Court shall consider the submissions of the Income- tax Department/complainant so also present petitioners (accused) and then, take into account and then pass a speaking order, against which remedies of both the parties shall stand reserved. 31. The petitioners shall be free to challenge order granting prosecution sanction in accordance with law, if so advised. 32. The stay applications also stand disposed of accordingly.” (3 of 3) [CRLMP-5042/2021] In light of the aforesaid order, the present petition stands disposed of in the same terms. All pending applications also stand disposed of. (DR.PUSHPENDRA SINGH BHATI), J. 97-Zeeshan "