TMI Blog2013 (5) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... rial Court and the revisional Court are set aside and the matter is now remanded back to the Court of the Additional Chief Metropolitan Magistrate with the direction for framing charge under Section 276-CC of the Income Tax Act against the respondent and to try her in accordance with law. It is however, clarified that nothing observed by this Court in this order shall be considered by the trial Court to be any final expression of opinion on the merits of the complainant’s case or the respondent’s explanation which she had tendered in response to show cause notice given to her before the filing of the complaint in Court by the Income Tax Department - The case shall now be taken up by the trial Court on 29th April,2013 at 2 p.m. - Crl. M.C. No.2110/2010 - - - Dated:- 13-3-2013 - P K Bhasin, J. For the Appellant: Mr Tiger Singh. For the Respondent: Mr H R Khan Suhel. JUDGEMENT:- The respondent was discharged by the Court of Additional Chief Metropolitan Magistrate, Delhi vide order dated 22nd August,2008 for the commission of the offence punishable under Section 276-CC of the Income Tax Act, 1961 on the ground that the complainant (Income Tax Department) had faile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1995 only on 1st May, 1995 whereas the Assessee/Accused was required statutorily to file the said returns latest by 31st October, 1994. 7. That a show-cause notice dated 21.8.1998 was served upon the Assessee/Accused seeking the explanation of the accused/Assessee for late filing of the returns. The accused/Assessee had replied to the said show-cause notice vide his reply dated 4th September, 1998. 8. That the accused/Assessee has not rendered any valid and cogent reasons for filing the Income Tax Return for the Assessment year, 1994-95 after the lapse of 7 months. The delay on the part of the accused/Assessee in filing the Return for the relevant Assessment years, mentioned herein above, is wilful, deliberate, malicious and the accused has not demonstrated any paucity of funds or any valid and cogent reasons beyond her control. It is pertinent to mention here that the accused/Assessee is a habitual defaulter in filing the late returns. 9. That the accused-respondent has, thus, committed the offence under Section 276-CC of the Income Tax Act, 1961, as amended upto date and she is liable to be prosecuted and punished for the same. 3. After examining the complaint t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revisional Court also erred in affirming the trial Court s order. It is not in dispute that the respondent had not filed the return for the assessment year 1994-95 within prescribed period and not even within the period within which the petitioner-complainant was required her to do so on it being found that she had not filed her return. The respondent had not even respondent to the communications, as referred to in the complaint, sent to her by the petitioner-complainant requiring her to file her return or to show the proof of filing if it had been filed within the prescribed time. So, the offence under Section 276 CC stood committed by that time and for that offence the Department could file a criminal complaint against her after obtaining requisite sanction from the competent authority which it did obtain and complaint was filed in Court. After the complaint had been filed the trial Court had found a prima facie for taking cognizance of the said offence and so the respondent was summoned. In the pre-charge evidence adduced by the Department the aforesaid facts were reiterated by the departmental witnesses and the same were not challenged also during their cross-examination on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of culpable mental state when the matter is taken up for trial. 9. This decision of the Apex Court squarely applies to the facts of the case in hand. It would be for the respondent to establish during the trial that her failure to file her return was not wilful. The Courts below went wrong in going into the question as to whether the explanation offered by the respondent in response to the show cause notice given to her before the filing of the complaint in Court was rightly rejected or not. Once the complaint stood filed the trial Court was only required to examine whether cognizance should be taken or not and once it was decided to take cognizance and to summon the respondent the trial Court thereafter was required to examine whether in the pre-charge evidence the complainant had been able to show that the respondent had not filed her return for the assessment year in question within the prescribed period, which fact in the present case was not even disputed by the respondent. So, after raising the presumption under Section 278-E the trial Court should have framed the charge against the respondent leaving it to him show during the trial thereafter that there was no wilful defa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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