IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.9124 of 2011 ANIL KUMAR SINHA Versus UNION OF INDIA with Cr.Misc. No.9092 of 2011 ANIL KUMAR SINHA Versus UNION OF INDIA with Cr.Misc. No.9839 of 2011 ANIL KUMAR SINHA Versus UNION OF INDIA AND ORS. with Cr.Misc. No.9837 of 2011 ANIL KUMAR SINHA Versus THE UNION OF INDIA with Cr.Misc. No.9133 of 2011 ANIL KUMAR SINHA Versus UNION OF INDIA AND ORS. with Cr.Misc. No.9806 of 2011 ANIL KUMAR SINHA Versus THE UNION OF INDIA ----------- 2. 11.04.2011. Heard Mr. Vikash Jain, learned senior counsel for the petitioner and Mrs. Archana Sinha, learned counsel for the Income Tax Department. The petitioner is apprehending his arrest in six complaint cases in all of which cognizance has been taken under Section 276CC of Income Tax Act. The accusation against the petitioner is that M/S. St. Joseph Public 2 School, Dalsinghsarai, Samastipur, is run by the trust, namely, MSV Memorial Education Scientific and Health Trust. The petitioner is the trustee of the said trust. In pursuant to the search conducted on 13.02.2008 at the residential as well as the business premises of the petitioner, certain documents were seized and notices under Section 153A of the Income Tax Act, 1961 came to be issued on 29.10.2008 requiring the petitioner to file the returns for Assessment Years 2003-04 to 2008-09 within fifteen days of service of notice but the petitioner did not file the returns. Thereafter, the notices were issued under Section 142(1) of the Income Tax Act by which the petitioner was required to file his returns by 10.08.2009 but the petitioner did not file his returns till the stipulated date rather he filed a time petition requesting for time to file the returns. It is further alleged that the petitioner did not file the returns even after issuance of notices under Section 153A and five months of handing over the photo copy of the seized materials which reflect the deliberate and 3 willful act to avoid the income tax proceeding since the petitioner did not offer any convincing explanation of the show cause notice hence the sanction was obtained under Section 279 of the Income Tax Act and the complaint was lodged when the learned Special Judge, Economic Offences, took cognizance under Section 276CC of the Income Tax Act vide order dated 23.12.2009. Learned senior counsel for the petitioner, Mr. Vikash Jain, submits that the petitioner could not file the show cause properly due to the petitioner’s illness and non-supply of the document seized by the authorities. The other contention is that neither the notices under Section 142(A) or the complaint reflect the estimated tax liability nor the assessment has been made till date and the matter is pending before the Settlement Commission. A counter affidavit has been filed on by Mrs. Archana Sinha learned counsel appearing on behalf of the Income Tax Department and has submitted that the petitioner runs the school M/S. St. Joseph Public School, Dalsinghsarai, though the 4 school is run by a trust, namely, M & B Memorial Education Scientific and Health Trust but the main person running the trust is the petitioner but the trust does not have the exemption under Section 12A and 80(G) of the Income Tax Act. The documents were supplied to the petitioner but on the pretext of illness the returns were not filed. The notices were issued under Section 153A on 29.10.2008. The show cause for launching prosecution under Section 276CC of the Income Tax Act issued on 10.08.2009, the complaint was filed under Section 276 CC on 13.10.2009, show cause notice for penalty under Section 270F of the Income Tax Act for assessment years 2003-04 to 2008-09 were issued on 23.04.2010. Notices under Section 142(1), for assessment years 2003-04 to 2009-10 on 26.10.2010 but the returns have not been filed. Considering the rivals submissions of the parties, this Court is of the view that the provisions of 276CC of the Income Tax Act is a quantum based penal provision which reads as follows: “ If a person wilfully fails to furnish in due time (the return of fringe 5 benefits which he is required to furnish under sub-section (1) of section 115WD or by notice given under sub-section (2) of the said section or section 115WH or) the return of income which he is required to furnish under sub-section(1) of section 139 or by notice given under (clause (i)of sub- section(1) of section 142) or section 148(or section 153A), he shall be punishable,- (i) in a case where the amount of tax, which would have been evaded if the failure had not been discovered, exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine; (ii) in any other case, with imprisonment for a term which shall not be less than three months but which may extend to three years and with fine: Provided that a person shall not be proceeded against under this section for failure to furnish in due time the (return of fringe benefits under sub-section(1) of section 115WD or) return of income under sub- section(1) of Section 139- (i) for any assessment year commencing prior to the Ist day of April, 1975; or (ii) for any assessment year commencing on or after the Ist day of April 1975, if (a) the return is furnished by him before the expiry of the assessment year; or (b) the tax payable by him on the total income determined on regular assessment, as reduced by the advance tax, if any, paid, and any tax deducted at source, does not exceed three thousand rupees.) 6 It appears that neither any notices issued by the Department nor the show cause nor the complaint, reflect the estimated amount of escaped tax which not only clouds the bonafide of the accusation but also reflects the mechanical application of mind while taking cognizance. The contention of learned senior counsel for the petitioner that the assessee has preferred an application before the Settlement Commission has been admitted by learned counsel for the Income Tax in para 15 of the counter affidavit where it is also admitted that the assessee in his individual capacity has paid total tax of Rs. 1.34 Crore and 1.08 Crore was paid by MSV Memorial Education Scientific and Health Trust before filing an application before the Settlement Commission and above all Settlement Commission, Additional Bench, Kolkata, has admitted the application of the assessee. Paragraph No. 15 of the counter affidavit reads as follows: “ That the assessee preferred an application before the Settlement Commission, Additional Bench, Kolkata under Section 245D (1) of the Income Tax Act, 1961, on 11.12.2010 for assessment years 2003-04 to 2010-11. The application was 7 allowed to be proceeded with under Section 245D(1) of the Income Tax Act, 1961, on 23.12.2010. The assessee in his individual capacity has paid total tax of Rs. 1.34 Crore and Rs. 1.08 Crore was paid by MSVM Memorial Education Scientific & Health Trust of which Shri Anil Kumar Sinha is the trustee. The assessee paid these taxes before filing an application before the Settlement Commission for settlement of his case. The settlement application has been admitted by the Hon’ble Settlement Commission, Additional Bench, Kolkata.” Considering the aforesaid facts, let the petitioner, above named, be released on bail in the event of arrest or surrender before the learned court below within a period of twelve weeks from today in connection with complaint case nos. 414(C) of 2009, 415(C) of 2009, 419(C) of 2009, 417(C) of 2009, 416(C) of 2009 and 418(C) of 2009 respectively on furnishing bail bond of Rs.10,000/-(Ten Thousand) each with two sureties of the like amount each to the satisfaction of the learned Special Judge, Economic Offences, Patna, subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure. The bail bond of the petitioner will be accepted on the undertaking that the petitioner will regularly appear before the learned court below. 8 Default by the petitioner on three consecutive occasions shall give liberty to the prosecution to file an application for cancellation of bail of the petitioner. U. K. ( Dinesh Kumar Singh, J)