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TMI Blog2022 (1) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Year 2014-15. The same ought to have been filed on or before 31.7.2014. Individual Transaction Statement with the department reveals that the accused earned substantial income of Rs.2,32,94,353/- for which TDS has been deducted under Section 194C and 194H of the Incme Tax Act during the Financial year 2013-14. But return of income as mandated under Section 139 of the Income Tax Act, 1964 was not filed by the accused. Hence a show casue dated 26.7.2017 was issued which was not replied. Hence, prosecution has been launched for non-filing of Return under Section 276CC of the Income Tax Act. 3. The learned counsel appearing for the Petitioner though raised several grounds, he focused mainly on the ground that without any assessment order t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three months but which may extend to three years and with fine: Provided that a person shall not be proceeded against under this section for failure to furnish in due time the return of income under subsection (1) of section 139- (i) for any assessment year commencing prior to the 1st day of April, 1975; or (ii) for any assessment year commencing on, or after the 1st day of April, 1975, if- (a) the return is furnished by him before the expiry of the assessment year; or (b) the tax payable by him on the 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." 7. On a careful reading of the above section makes it very clear tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Return on or before the due date. Part 2 of Section 276CC of the Act deals with the filing of Return after issuance of notice under section 142 or 148 of the Act. Therefore, when the prosecution alleged that there is a wilful failure to file a return as required under Section 139 of the Act, the proviso will not helpful to the petitioner to contend that without assessment order being made he cannot be prosecuted. 8. In Sasi Enterprises vs. Assistant Commissioner of Income Tax [(2014) 5 SCC 139] the Honourable Apex Court has held as follows: "25. Section 276CC applies to situations where an assessee has failed to file a return of income as required under Section 139 of the Act or in response to notices issued to the assessee under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 139(1) of the Act. In other words, the proviso would not apply after detection of the failure to file the return and after a notice under Section 142(1)(i) or 148 of the Act is issued calling for filing of the return of income. Proviso, therefore, envisages the filing of even belated return before the detection or discovery of the failure and issuance of notices under Section 142 or 148 of the Act." 9. Similarly, in para 28, the Apex court further held that Proviso cannot control the main section, it only confers some benefit to certain categories of assesses. In short, the offence under Section 276CC is attracted on failure to comply with the provisions of Section 139(1) or failure to respond to the notice issued under Section 142 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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