SHRI.K.P. JOHNY V. THE ASSISTANT COMMISSIONER OF INCOME TAX

Crl.MC/4634/2018

AI Insights

The case involves Shri K.P. Johny, who was accused of failing to file his Income Tax Return for the assessment year 2014-15. The Assistant Commissioner of Income Tax, Circle 2(1), Thrissur, initiated criminal proceedings against him under Section 276 CC of the Income Tax Act. The petitioner sought to quash these proceedings, arguing that his failure to file the return was not willful. The court dismissed the petition, stating that the question of willfulness is a factual dispute that needs to be resolved based on evidence presented at trial, not at the stage of a miscellaneous application under Section 482 Cr.P.C.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 755179 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 17-07-2018
• Assessment Year: misc
• Other Referred Cases: WP(C) No.11320 of 2018
• Laws Referred To: Income Tax Act, Cr.PC
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH; C S HRITHWIK
• Assessee Lawyers: T M SREEDHARAN; V P NARAYANAN; R BHASKARA KRISHNAN
• Keywords: Appeal; Assessment Order; Demand notice; Income Tax Return; Judgment; Prosecution; Stay Petition; Summons; Willful Failure
• Section: 148; 271F; 190; 276 CC

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW TUESDAY, THE 17TH DAY OF JULY 2018 / 26TH ASHADHA, 1940 Crl.MC.No. 4634 of 2018 CC 446/2018 of ADDL.C.J.M.(E&O), ERNAKULAM PETITIONER(S)/ACCUSED SHRI.K.P. JOHNY, S/O.K.D.PAULOSE, AGED 62 YEARS, RESIDING AT MANAPPURAM HOUSE, HOSPITAL ROAD, CHALAKUDY, THRISSUR - 680307. BY ADVS.SRI.T.M.SREEDHARAN (SR.) SRI.V.P.NARAYANAN SRI.R.BHASKARA KRISHNAN RESPONDENT(S)/STATE AND COMPLAINANT : 1. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 2(1), THRISSUR, OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 2(1), RANGE 2, THRISSUR 3RD FLOOR, AYAKAR BHAVAN, SAKTHAN THAMPURAN NAGAR, THRISSUR DISTRICT, PIN - 680001. 2. THE PRINCIPAL COMMISSIONER OF INCOME TAX, AAYAKAR BHAVAN, SAKTHAN THAMPURAN NAGAR, THRISSUR - 680001. 3. THE COMMISSIONER OF INCOME TAX, AAYAKAR BHAVAN, SAKTHAN THAMPURAN NAGAR, THRISSUR - 680001. 4. THE STATE OF KERALA - REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI - 682031. BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX BY SENIOR PUBLIC PROSECUTOR SRI.C.S.HRITHWIK THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 4634 of 2018 () APPENDIX PETITIONER(S)' EXHIBITS ANNEXURE A- TRUE COPY OF THE COMPLAINT NO.446/2018 FILED U/S.190 OF CR.PC 973 BY THE 1ST RESPONDENT FOR AY-2014-15. ANNEXURE B- TRUE COPY OF THE ASSESSMENT ORDER DATED 14/12/2017 ISSUED BY THE 1ST RESPONDENT. ANNEXURE C- TRUE COPY OF ORDER DATED 27/9/2017 ISSUED BY THE 1ST RESPONDENT U/S.271F ALONG WITH DEMAND NOTICE. ANNEXURE D- TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 5/2/2018 FIELD BY THE PETITIONER BEFORE THE CIT(A). ANNEXURE E- TRUE COPY OF REPLY DATED 2/2/2018 GIVEN BY THE PETITIONER BEFORE THE 1ST RESPONDENT. ANNEXURE F- TRUE COPY OF THE COMMON STAY PETITION DATED 5/2/2018 FIELD BY THE PETITIONER BEFORE THE 1ST RESPONDENT FOR AY-2014-15. ANNEXURE G- TRUE COPY OF THE JUDGMENT DATED 4/4/2018 IN WP(C) NO.11320 OF 2018 OF THIS HONOURABLE COURT. ANNEXURE H- TRUE COPY OF THE SUMMONS ISSUED TO THE 1ST PETITIONER IN CC NO.446/2018 ISSUED BY THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE, ERNAKULAM. RESPONDENT'(S) EXHIBITS: NIL //TRUE COPY// PA TO JUDGE bka/- K. ABRAHAM MATHEW , J. -------------------------------------------------- Crl.M.C. No. 4634 of 2018 -------------------------------------------------- Dated this the 17th day of July, 2018 O R D E R Petition filed under Section 482 Cr.P .C. 2. In CC No. 446 of 2018 on the file of the Additional Chief Judicial Magistrate Court (Economic Offences), Ernakulam. The petitioner is being proceeded against under Section 276 CC of the Income Tax Act for his failure to file Income Tax Return for the year 2014-15. The proceedings are sought to be quashed mainly on the ground that the failure was not willful. 3. Heard the learned counsel for the petitioner, the learned Standing Counsel for respondents 1 to 3 and the learned Public Prosecutor. 4. It is an admitted fact that the petitioner failed to file Income Tax Return in time for the year 2014-15. A notice was issued to him under Section 148 of the Income Tax Act to submit his return. In spite of receipt of the notice, he did not file it. This is the Crl.M.C. No. 4634 of 2018 ..2.. circumstance in which the prosecution was lodged against him. 5. Though there are several grounds mentioned in the Crl.M.C., the only specific ground is that the failure was not willful. This is a fact to be considered by the trial court on the basis of the evidence adduced before it. Such disputed question of fact cannot be decided by this court in a proceedings under Section 482 Cr.P .C. There is no merit in this Crl.M.C. Accordingly, this Crl.M.C. is dismissed. Sd/- K. ABRAHAM MATHEW JUDGE bka/17.07.2018 "