TMI Blog2024 (4) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... 132(4-A), the conviction cannot be sustained. In the above case, the Hon ble Apex Court has clearly held that the complainant in order to bring home the guilt of the accused for the offence punishable u/s 276C has to prove the mens rea of the accused for non-payment of tax or attempt to evade the tax. But in the present case, the accused respondent has explained the reasons, in detail, about the delay in filing the income tax returns and depositing the entire tax amount with penalty subsequently. Therefore, the complainant/ appellant has failed to prove that the respondent had mens rea to evade the payment of tax. Accordingly, the Income Tax Department has failed to prove the guilt of the accused respondent beyond all the reasonable doubts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent did not submit his Income Tax Returns under Section 139(1) of the Act of 1961, within the stipulated time on or before 31.07.1978 and the assessee filed his returns on 31.12.1980. Thereafter, proceedings under Section 271(1) of the Act of 1961, were initiated vide notice dated 31.12.1981, but the respondent failed to submit any explanation. Then a reminder was issued but no reply was submitted. Thereafter the Income Tax Officer imposed penalty of Rs. 2200/- on the respondent under Section 271(1) of the Act of 1961, vide order dated 10.11.1984. 3. In support of the complaint, the appellant examined PW-1 D.P Govil. Thereafter charges were framed against the respondent under Section 276 CC of the Act of 1961. The accused-respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions made at Bar and perused the material available on the record. 7. The sole case of the prosecution is that the respondent has failed to comply with the provisions contained under Section 139(1) of the Act of 1961 and he has submitted the income tax returns after a delay of 28 months which amounts to an offence under Section 276CC of the Act, 1961. It is relevant to extract the provisions under Sections 139(1) and 276CC of the Act of 1961, hereunder:- 139. Return of income. (1) Every person, (a) being a company or a firm]; or (b) being a person other than a company or a firm, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day of April, 1975; or (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 a return is furnished by him under sub-section (8A) of section 139 within the time provided in that sub-section]; or (b) the tax payable by such person, not being a company, on the total income determined on regular assessment, as reduced by the advance tax or self-assessment tax, if any, paid before the expiry of the assessment year, and any tax deducted or collected at source, does not exceed ten thousand rupees. 8. The above provision applies to the situations where an assessee has failed to file the return of income as regulated under Section 139(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sume the existence of such mental State. The burden is shifted to the accused to prove that he had no such mental state. As per the explanation, the culpable state would include intention , motive and knowledge . It further provide that the absence of such culpable mental state shall have to be proved by the accused in defence beyond reasonable doubt. 10. For bringing home the charge against the accused for his conviction under Section 276CC of the Act of 1961, it is essential on the part of the Income Tax Department to prove that there was willful attempt to evade any tax, penalty or interest chargeable. The High Court of Karnataka has dealt with this issue in Crl. R.P. No. 329/2019 and has held as under:- The gist of the offence under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islature is that the penalty should serve as a deterrant. 12. While dealing with Section 276C(2) of the Act of 1961, the Hon ble Apex Court in the case of Prem Das Vs. Income Tax Officer reported in (1999) 5 SCC 241 has held as under:- Willful attempt to evade any tax, penalty or interest chargeable or imposable under the Act under Section 276-C is a positive act on the part of the accused which is required to be proved to bring home the charge against the accused It has been held by the Apex Court that for holding an accused guilty under Section 276CC of the Act of 1961, mens rea is a necessary ingredient. Hence, in absence of proof of mens rea and on the basis of mere presumption under Section 132(4-A), the conviction cannot be sustained. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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