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2023 (8) TMI 88 - MADRAS HIGH COURTProsecution Proceedings u/s 276CC and 276C(2) - non furnishing the return and paying the tax on time - Presumption as to culpable mental state - petitioner, even at the time of filing the return with delay u/s 139(4) of the Act, did not pay the self assessment tax along with the return and rather, it was paid only on 14.3.2016 after receipt of the notice from the AO - HELD THAT:- Section 139(4) of the Act cannot, by any stretch, control the operation of Section 139(1) of the Act, which actually fixes the period for furnishing the returns. The term 'wilfully fails to furnish in due time' as contained in Section 276CC of the Act takes within its fold the due time that has been fixed under Section 139(1) of the Act and not the extended time provided under Section 139(4) of the Act. Therefore, the mere filing of return during the extended time will not come to the aid of the petitioner to escape from the criminal prosecution. Whether there is wilfulness on the part of the petitioner in filing the returns with delay? - The issue as to whether there was wilfulness in not filing the returns on time and not paying the tax on time, is only a matter of fact, which can be ascertained only through appreciation of evidence. In the light of this provision, this Court, exercising its jurisdiction under Section 482 of the Code, cannot presume innocence or absence of wilfulness on the part of the petitioner. On the other hand, what can be presumed is only culpable mental status and the onus is upon the petitioner to prove the contrary and that can be done only at the time of trial. On the facts alleged in the complaint, the offences have been prima facie made out. In view of the same, the statutory presumption under Section 278E of the Act comes into operation. Under such circumstances, this Court, in exercise of its jurisdiction under Section 482 of the Code, cannot disregard the statutory presumption. This Court also cannot go into the facts of the case nor the defence taken by the petitioner to discharge the onus since it will be beyond the jurisdiction under Section 482 of the Code. This exercise can be carried out only in the course of trial since the determination of culpable state of mind is primarily a determination of fact, which requires appreciation of evidence. This Court does not find any ground to interfere with the proceedings pending before the Court below. It is made clear that it will be left open to the petitioner to raise all the grounds before the Court below and the same will be considered on their own merits and in accordance with law. Any observations made in this order will not have a bearing on the Court below while deciding the case on merits..
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