Bombay High Court
Rajesh Somandas Sachdev vs Income Tax Officer(Shri. Vilas V … on 22 July, 2026
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
CNR No : HCBM010560372025
912-WP-5692-2025+.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.5692 OF 2025
Rajesh Somandas Sachdev ...Petitioner
Versus
Income Tax Officer & Ors. ...Respondents
Ms. Rutuja N. Pawar (through Video Conferencing) a/w. Ms. Sneha
More and Ms.Tejal Mhatre, for the Petitioner.
Mr. Subir Kumar a/w. Ms. Ashita Aggarwal, for the Respondent
Nos.1 and 2.
Mr. S. V. Walve, APP, for Respondent No.3.
CORAM: MADHAV J. JAMDAR, J.
DATED : 22nd JULY 2026
JUDGMENT:
1. Heard Ms. Pawar, learned Counsel appearing for the
Petitioner and Mr. Kumar, learned Counsel appearing for the
Respondent Nos.1 and 2 and Mr. Walve, learned APP appearing for
Respondent No.3-State.
2. By this Writ Petition, filed under Articles 226 and 227 of the
Constitution of India, the Petitioner seeks the quashing and setting
aside of the Criminal Complaint No.SW/535/2018 pending on the
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file of the learned Additional Chief Metropolitan Magistrate, 38 th
Court, Ballard Pier, Mumbai.
3. It is the submission of the learned Counsel appearing for the
Petitioner that the Petitioner has filed the Income Tax Returns on
10th September 2018 for the Assessment Year 2014-2015. It is
submitted that although there is substance in the contention of the
learned Counsel appearing for Respondent Nos.1 and 2 that the
the Income Tax Returns were filed pursuant to a Notice under
Section 148 of the Income Tax Act 1961 (for short “the said Act”),
however, she submits that in fact, the Petitioner is seeking a refund
in the said Income Tax Returns of Rs.1,64,340/-. Therefore,
learned Counsel appearing for the Petitioner submits that the
Petitioner’s case will be covered by the proviso to Section 276CC,
specifically sub-clause ii(b) of the said Act. To substantiate her
contention, she relies on the decisions of the Supreme Court in the
case of Guru Nanak Enterprises vs. Income-tax Officer 1 and also
relies on the two decisions of the Madras High Court in the case of
1 (2005) 10 SCC 451
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Rajkumar Thiyagarajan vs. Income Tax Department, Madurai 2and
Manav Menon vs. Deputy Commissioner of Income-tax3
4. On the other hand, Mr. Subir Kumar, learned Counsel
appearing for Respondent Nos.1 and 2 submits that in the facts
and circumstances, the proviso to Section 276CC, sub-clause ii(b)
does not apply as it is only applicable to regular assessments. It is
submitted that in this case, the Income Tax Returns were filed
after a Notice was issued under Section 148 of the said Act on 18 th
September 2017 and after the initiation of the criminal prosecution
on 7th March 2018. The learned Counsel relies on Sections 2(40),
143(3), 147, 148 and 276CC of the said Act. He submits that as
the Petitioner has not filed the Income Tax Returns within the
prescribed time, the offence under Section 276CC of the said Act is
made out and therefore, no interference is required. However, he
fairly admits that as per the Income Tax Returns filed by the
Petitioner and the subsequent Assessment Order dated 26 th
December 2018, the Petitioner is entitled for a refund of
Rs.1,64,340/-.
2 (2021) 124 taxmann.com 119 (Madras)
3 2023 SCC OnLine Mad 8091
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5. A perusal of the record shows that as the Petitioner failed to
file the Income Tax Returns for the Assessment Year 2014-2015, a
Notice under Section 148 of the said Act was issued to the
Petitioner on 18th September 2017. Despite the issuance of the said
Notice, the Income Tax Returns were not filed. Consequently,
Criminal Complaint being C.C. No.SW/535/2018 was filed against
the Petitioner on 7th March 2018 for the offence under Section
276CC of the Income Tax Act.
6. It is an admitted position that thereafter on 10 th September
2018, the Petitioner filed the Income Tax Returns for the
Assessment Year 2014-2015. The said Income Tax Returns show
that the Tax Deducted at Source (TDS) for the Petitioner was
Rs.2,54,788/- and that the Petitioner is entitled for a refund of
Rs.1,64,340/-. The said Income Tax Return was subsequently
accepted and confirmed by the Assessment Order.
7. Learned Counsel appearing for the Department fairly admits
that as per the Income Tax Returns filed by the Petitioner and
subsequent Assessment Order, the Petitioner is entitled for a refund
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of Rs.1,64,340/-. In these circumstances, Section 276CC and more
particularly, proviso ii(b) is relevant and the same reads as under:
“Failure to furnish returns of income.
276CC. If a person wilfully fails to furnish in due
time the return of fringe 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 of 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 twenty-five hundred thousand
rupees, with rigorous imprisonment for a term
which shall not be less than six months 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 two 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
first day of April, 1975; orPage 5
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(ii) for any assessment year commencing on or after
the 1st 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.”
(Emphasis added)
Thus, what is provided by Section 276 of the said Act is that
if a person wilfully fails to furnish in due time and the return of
income which he is required to furnish under sub-section (1) of
Section 139 of the said Act then the said offence is punishable.
However, proviso to Section 276CC of the said Act provides that if
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
then such a person shall not be proceeded with.
8. In view of the above provision of Section 276CC, the
decision of the Supreme Court in the case of Guru Nanak
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Enterprises (supra) and more particularly, the paragraph Nos.5 to
8 of the same are relevant, which read as under:
“5. It appears to us that the case of the appellant is
clearly covered by proviso (ii)(b) of Section 276-CC.
In the instant case as noticed, the total tax liability
of the appellant was finally assessed at Rs 1360.
Under Section 276-CC proviso (ii)(b), shorn of
unnecessary details, a person shall not be proceeded
against under this section for failure to furnish in
due time the return of income if the tax payable by
him on the total income determined, as reduced by
advanced tax, if any, paid, and any tax deducted at
source, does not exceed Rs 3000. As noticed earlier,
the appellant had disclosed a tax liability of Rs 644
which on final assessment was determined as Rs
1360.
6. Counsel for the Revenue could not advance any
argument to support the prosecution launched
against the appellant, because it is clear that the
total income tax liability determined by the
department is only Rs 1360 which is much less than
Rs 3000 envisaged under the proviso.
7. We, therefore, find in the facts and circumstances
of the case, that the prosecution is wholly
unwarranted. Accordingly, we set aside the
judgment and order of the High Court and quash
the proceeding pending against the appellant in the
Court of the Special Judicial Magistrate (Economic
Offences), Jaipur on the basis of the complaint
lodged by the Income Tax Officer, District Circle II,
Jaipur on 31-3-1986.
8. This appeal is accordingly, allowed.”
(Emphasis added)
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9. In the said case, before the Supreme Court tax liability was
Rs.1,316 which was well within the statutory limit of Rs.3,000/-.
This threshold has since been increased to Rs.10,000/-. In the
present case, however, the Petitioner is actually entitled for a
refund of Rs.1,64,340/-. Thus, the above observations of the
Supreme Court are squarely applicable to the present case. The
two decisions of the Madras High Court also confirm this legal
position.
10. It is also pertinent to note that while sanctioning
prosecution, the Commissioner of Income Tax failed to consider
that a TDS amount of Rs.2,54,788/- had already been deducted.
11. Although Mr. Subir Kumar, learned Counsel appearing for
the Department submits that the said proviso is not applicable to
this case, however, it is an admitted position that there is no loss to
the revenue and that the Petitioner is entitled for the
aforementioned refund. Consequently, in these facts and
circumstances, the Petitioner is entitled to the relief sought.
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12. It is settled legal position that inherent jurisdiction under
Section 482 should be exercised sparingly, carefully and with
caution and only when such exercise is justified by the tests
specially laid down in the section. The Court is duty-bound to
exercise its jurisdiction under Section 482CrPC when the exercise
of such power is justified by the tests laid down in the said section.
Jurisdiction under Section 482CrPC must be exercised if the
interest of justice so requires. The same principle will apply to
Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
13. The factual position on record clearly shows that as the
Petitioner failed to file the Income Tax Returns for the Assessment
Year 2014-2015, a Notice under Section 148 of the said Act was
issued to the Petitioner on 18th September 2017. Despite the
issuance of the said Notice, the Income Tax Returns were not filed.
Consequently, Criminal Complaint being C.C. No.SW/535/2018
was filed against the Petitioner on 7th March 2018 for the offence
under Section 276CC of the Income Tax Act. It is an admitted
position that thereafter on 10 th September 2018, the Petitioner
filed the Income Tax Returns for the Assessment Year 2014-2015.
The said Income Tax Returns show that the Tax Deducted at Source
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(TDS) for the Petitioner was Rs.2,54,788/- and that the Petitioner
is entitled for a refund of Rs.1,64,340/-. The said Income Tax
Return was subsequently accepted and confirmed by the
Assessment Order. Thus, the case is covered by the Supreme Court
in the case of Guru Nanak Enterprises (supra). Thus, in the facts
and circumstances, it is necessary to grant the relief sought in the
Writ Petition to secure the ends of justice.
14. Thus, in the facts and circumstances of the case, the criminal
prosecution is wholly unwarranted and the same would amount to
an abuse of the process of law.
15. For the above reasons, the Petitioner is entitled for the relief
in terms of the prayer clause (a).
16. Accordingly, the Writ Petition is disposed of in above terms.
[MADHAV J. JAMDAR, J.]
Digitally
signed by
SONALI
SONALI MILIND
MILIND PATIL
PATIL Date:
2026.07.25
16:27:52
+0530Page 10
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