TMI Blog2010 (7) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... ordance with section 139(1) of the Act and no prosecution could have been initiated against the assessee. There was no infirmity in order passed by the Magistrate dismissing the petition filed by assessee. - 578 to 580 of 2010 and 1 to 1 of 2010 - - - Dated:- 7-7-2010 - T. SUDANTHIRAM J. C. R. Sathindran for the petitioner. Ramasamy (K.), Senior Special Public Prosecutor for Income-tax Cases, for the respondent. JUDGMENT 1. T. Sudanthiram J.- The revision petitioner in all these three cases is one and the same. A complaint was filed against the petitioner in these three cases for not filing the income-tax returns before the statutory due date as per section 139(1) of the Income-tax Act, 1961 (hereinafter referred to as the Act) and thereby liable under section 276CC of the Act, 1961. 2. In E. O. C. C. No. 95 of 2005, a complaint was filed for not filing the returns before the statutory due date, i.e., on August 31, 1996, but filed only on March 24, 1999 with a delay of 2 years and 7 months ; in E. O. C. C. No. 96 of 2005, a complaint was filed for not filing the returns before the statutory due date, i.e., on October 31, 1997, but filed only on March 26, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted from the offence committed by him for not filing the income-tax returns within the statutory period prescribed as per section 139(1) of the Act, by filing returns subsequently beyond the statutory due date. There are separate ingredients in section 276CC(1) for contravention of section 139(1) or 142(1) or 148 of the Act. 6. The learned senior special public prosecutor also relied on a decision of the hon'ble Supreme Court reported in Prakash Nath Khanna v. CIT [2004] 266 ITR 1 (SC). 8. This court has considered the submissions made by the learned counsel on either side and perused the records. 9. The fact that the petitioner has not filed the income-tax returns before the statutory due date as per section 139 of the Act is not denied. It appears that even after the notice had been given under section 142 of the Act, the returns were not filed but only after issuance of the notice under section 148 of the Act, the returns were filed by the petitioner. 10. The question for consideration is whether by issuing a notice under section 148 of the Act to the petitioner and thereafter by filing the returns within the time prescribed as per the said notice, he is exonerated fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total income determined on regular assessment, as reduced by the advance tax, if any, paid, and any tax deducted at source, does not exceed three thousand rupees." 13. The hon'ble Supreme Court in the decision reported in Prakash Nath Khanna v. CIT [2004] 266 ITR 1 at page 10 has held as follows : "The heading of the section or the marginal note may be relied upon to clear any doubt or ambiguity in the interpretation of the pro-vision and to discern the legislative intent. In CIT v. Ahmedbhai Umarbhai and Co., AIR 1950 SC 134 ; [1950] 18 ITR 472, after refer-ring to the view expressed by Lord Macnaghten in Balraj Kunwar v. Jagatpal Singh [1904] ILR 26 All 393 (PC), it was held that marginal notes in an Indian statute, as in an Act of Parliament cannot be refer-red to for the purpose of construing the statute. Similar view was expressed in Board of Muslim Wakfs v. Radha Kishan [1979] 2 SCC 468 and Kalawatibai v. Soiryabai, AIR 1991 SC 1581. Marginal notes certainly cannot control the meaning of the body of the section if the language employed there is clear. (see Smt. Nandini Satpathy v. P. L. Dani, AIR 1978 SC 1025). In the present case, as noted above, the provisions of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o substance. The provision consists of two parts. The first relates to the infractions warranting penal consequences and the second, the measure of punishment. The second part in turn envisages two situations. The first situation is where there is discovery of the failure involving the evasion of tax of a particular amount. For the said infraction stringent penal consequences have been provided. The second situation covers all cases except the first situation elaborated above. The term of imprisonment is higher when the amount of tax which would have been evaded but for the discovery of the failure to furnish the return exceeds one hundred thousand rupees. If the plea of the appellants is accepted it would mean that in a given case where there is infraction and where a return has not been furnished in terms of sub-section (1) of section 139 or even in response to a notice issued in terms of sub-section (2), the consequences flowing from non-furnishing of the return would get obliterated. At the relevant point of time section 139(4)(a) permitted filing of return where return has not been filed within sub-section (1) and sub-section (2). The time limit was provided in clause (b). ..... X X X X Extracts X X X X X X X X Extracts X X X X
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