Re: Prosecution Complaint Filed in Court but Cognizance not taken by the Magistrate

In a case where Prosecution Complaint under the provisions of Section 276C r.w. 279 of the Income Tax Act has been filed against the assessee in the Competent Court however, till date, no summons/notices/process has been issued by the Magistrate nor the Court Fees has been paid by the Department, Whether mere filing of Complaint in the Court could tantamount to “Institution of Prosecution Proceedings” and if not, Whether the Benefit of the DTVsV could be availed by the assessee??

Please read question No 22 and answer there in  which reads as under   “ Where only notice for initiation of prosecution has been issued without prosecution being instituted, the assessee is eligible to file declaration under Vivad se Vishwas. However, where the prosecution has been instituted with respect to an assessment year, the assessee is not eligible to file declaration for that assessment year under Vivad se Vishwas, unless the prosecution is compounded before filing the declaration.”   

Filing of complain may be treated as  “Institution of Prosecution Proceedings”. Accordingly the assessee cannot avail the benefit under VSVA.  It seems the assessee has not received any intimation from the Court or from the Office of the Assessing officer as regards the launching of the prosecution. Assessee can  consider filing  the application for compounding the alleged offences . If the application for compounding the offences are accepted , the assessee can avail the benefit of the Scheme . If compounding application is rejected only on technical ground that the prosecution has been instituted though not served ,the assessee can  explore the possibility of filing  a writ against the rejection of compounding application only on technical ground .   

 

---