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2016 (3) TMI 1406 - GUJARAT HIGH COURTProsecution u/s 276CC - as per the Notice under section 153A, the return of income was to be filed by 12th October 2013 which the petitioner has failed - HELD THAT:- Under Section 153A A.O shall also assess or reassess the total income in respect of each assessment year falling within such six assessment years. Section 276CC of the Act under Chapter XXII- “Offences & Prosecution” provides for prosecution for failure to furnish return of income, if a person willfully fails to furnish in due time, the return of income which he is required to furnish under sub-section (1) OF Section 139 or by notice given under clause (1) 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 extent 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. Section 279 pertains to prosecution at the instance of Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner. Sub-section (2) of Section 279 provides that any offence under this Chapter may, either before or after the institution of proceedings, be compounded by the Principal Chief Commissioner or Chief Commissioner or a Principal Director General or Director General. The Apex Court in case of Prakash Nath Khanna & Ors.[2004 (2) TMI 3 - SUPREME COURT] held that the expression “in due time” occurring in Section 276CC means within the time stipulated in Section 139[1] and not the time postulated in Section 139 [4] - filing of the return under section 139 [4], even though without any notice from the Assessing Officer to do so does not satisfy the requirement of section 139 [1] and attracts Section 276-CC. Thus, in view of clear provisions of Section 276 attempt to reach a different conclusion by placing reliance on marginal heading or explanatory memo laid before the Parliament at the time of introduction of that section is impermissible. With respect to quashing criminal proceedings under Article 226 of the Constitution of India, the Apex Court held and observed that if the accused challenges the prosecution on the grounds that [a] there was no concealment of income and the allegation of tax evasion was based on no evidence, [b] the delay in filing returns happened in unavoidable circumstances and without any guilty mind, the absence of culpable mental state could be pleaded in defence at the criminal trial and the factual allegations raised by the writ petitioner-accused could then be considered by the trial Court. Thus this group of petitions deserve no consideration and are accordingly dismissed. Needless to say that all the contentions raised before this Court by the petitioners shall be available to them at the time of trial and dismissal of these petitions and any of the observations made shall not come in the way of the parties concerned, nor it could be regarded by the Court concerned which shall adjudicate the matters on its own merits.
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