TMI Blog1996 (10) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... he ITO alleged that the petitioner-HUF is an assessee under the IT Act and through its Karta, the petitioner. The petitioner filed the return of income for the asst. yr. 1988-89 on 26th March, 1990, although the due date for filing the return was 31st July, 1988. The return disclosed a total income of Rs. 60,000 but the assessment was completed under s. 143(3) of the Act on a total income of Rs. 1,00,000 (one lakh). The tax payable on assessed income was Rs. 37,800 out of which Rs. 16,800 had been paid as advance tax. Since the tax payable on regular assessment exceeded Rs. 5,000 and the petitioner had wilfully failed to furnish the return of income in due time as required under sub-s. (1) of s. 139 of the Act, the petitioner had committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or quashing the criminal prosecution. It is conceded that the position has since changed after the filing of the application in the year 1991 and the said ground is no more available to the petitioner. Shri Rajgarhiya, however, pressed the application mainly on two grounds. First, that the mere failure to file the return by the due date, does not constitute any offence under s. 276CC unless such failure is wilful and that there is no such allegation in the complaint. The second ground is that as no penalty has been imposed by the ITO under s. 271(1) of the Act, it was not open to the authorities to deny that the delay in filing the return was not on account of reasonable cause and hence the prosecution was incompetent. Shri S.K. Saran, lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... field and on account of which there was delay in filing the return. A copy of the said reply is Annexure-6 to the supplementary affidavit. It has again been stated in the supplementary affidavit that no allegation had been made about the wilful default on the part of the petitioner in not filing the return in time and that the prosecution on the face of it was, therefore, erroneous. Shri Saran, learned counsel for the Revenue, referred to para 5 of the complaint (Annexure-11) which specifically mentioned that, on the facts and circumstances stated above, it is obviously clear that the accused has wilfully failed to furnish in time the return of income which he was required to furnish under sub-s. (1) of s. 139 of the Act. Thus, there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10th Sept., 1986, the criminal prosecution of the petitioner at the very threshold cannot be quashed on the ground that he had no such mental state specially when the complainant had specifically alleged that the petitioner had wilfully failed to furnish the return of income. It is of no help to the petitioner that contrary to what the complaint petition alleged that he had not filed any explanation to the show cause notice issued to him as to why prosecution under s. 276CC of the Act should not be launched against him, he actually filed such an copy of which is Annexure -6 to the supplementary affidavit before the launching of the prosecution. 6. So far as the second ground for quashing the criminal prosecution is concerned, all that is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the ITO imposing any penalty which is not equivalent to the statement that a proceeding for imposing penalty had been drawn up against the petitioner and in which the ITO had chosen not to impose any such penalty. The statement at the Bar made on behalf of the petitioner that a show cause had been filed by the petitioner against imposition of any such penalty and no order had been passed by the ITO and that no such order can be passed now as it is barred by limitation, cannot be made the basis for drawing any conclusion that the ITO had accepted the stand of the petitioner that the delay in filing the return of income was on account of reasonable cause. 7. There is also nothing on the record to indicate that the ITO had decided not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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