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2023 (12) TMI 225 - MADRAS HIGH COURTOffence u/s 276CC - petitioner failed to file his return of income for the assessment year 2013-2014 as required under Section 139 - only contention raised by the petitioner is that the search conducted was premature since the tax due was only on 30.09.2013 - HELD THAT:- Search was conducted on 03.09.2013. Though the search was conducted on 03.09.2013, it is not an impediment for the petitioner to file his return of income on or before 30.09.2013. Filing return of income is mandatory as contemplated u/s 139(1) - mere search conducted by the authority concerned would not preclude the petitioner to file his return of income. Further, it is mandatory in nature and further expanded that if the returns are not filed within the stipulated time, then a presumption as to the culpable mental state can be drawn u/s 278E - The non filing of return of income within the time as stipulated under Section 139(1) and 153 of Act, offence stands complete and there can be a presumption for existence of mens rea and it is for the accused to prove the contrary beyond reasonable doubt, only before the trial court during the trial. Therefore, 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 before the trial court. Therefore, these grounds cannot be considered by this Court, that too under Section 482 of Cr.P.C since onus is upon the petitioner to rebut the presumption and that can be done only before the trial court during the trial by letting in evidence. Petitioner vehemently contended that once notice issued u/s 153A of the Act, it overrides all other provisions such as Sections 139, 147, 148, 149, 151 and 153 of the Act - If a person wilfully 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 by sub section (1) of Section 142 or Section 148 shall be punishable. Therefore, the search under Section 132 and subsequent notice under Section 153A are completely different from filing the return of income as contemplated under Section 139(1) of the Act. At any point of time, a search can be made under Section 132 of the Act if any incriminating material to show that the assessee evaded certain income in his return of income, notice under Section 153 will be issued to file his return of income for the concealed income. It is true as per search u/s 132 or requisition under Section 132A, the assessment officer assessed or re-assessed the total income in respect of each assessment year falling within six assessment years, taking into consideration of the incriminating materials collected during the search and other material pending would abate. It is nothing to do with the mandatory provision u/s 139(1) of the Act to file his return of income. Admittedly, in the case on hand, the petitioner failed to file his return of income on or before 30.09.2013. Further, there was not even an attempt by the petitioner to file his return of income till 29.01.2014 as contemplated under Section 139 sub clause (4) of the Act till the notice under Section 153A. That apart, the petitioner also failed to file his return of income even after receipt of the notice under Section 153A of the Act within the period of 30 days from the date of receipt of the notice under Section 153A of the Act. Therefore, the respondent rightly initiated prosecution against the petitioner and this Court finds no grounds to quash the same. Accordingly, this criminal original petition is dismissed. Consequently, connected miscellaneous petition is closed.
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