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TMI Blog2023 (8) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... o the assessment year 2013-14, the petitioner did not furnish his return of income along with the audit report as mandated under Section 139(1) of the Act. The petitioner is under a statutory obligation to furnish his return of income for the assessment year 2013-14 on or before 30.9.2013. (ii) The petitioner belatedly furnished the return of income for the assessment year 2013-14 on 29.3.2015 by taking advantage of Section 139(4) of the Act, which provides for belated furnishing of return of income till 31.3.2015. (iii) As per the return of income furnished by the petitioner on 29.3.2015, the petitioner himself had assessed the tax liability at Rs.1,04,94,060/-. Having made such an assessment, the petitioner ought to have paid the tax before filing his return of income or at least on the date of filing his return on 29.3.2015. However, the petitioner paid the self assessment tax only after the receipt of notice from the Assessing Officer, on 14.3.2016. (iv) The petitioner was issued a show cause notice dated 11.3.2016 as to why criminal prosecution proceedings under Sections 276CC and 276C(2) of the Act should not be initiated against him. There was no response for the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms of Section 139(4) of the Act, that will not dilute the infraction in not furnishing the return in due time as prescribed under Section 139(1) of the Act. She also submitted that the petitioner, even at the time of filing the return with delay under Section 139(4) of the Act, did not pay the self assessment tax along with the return and rather, it was paid only on 14.3.2016 after receipt of the notice from the Assessing Officer and that this, by itself, indicates the wilfulness on the part of the petitioner in not furnishing the return and paying the tax on time. 8. The learned Special Public Prosecutor appearing for the Income Tax Department further relied upon Section 278E of the Act, which provides for a statutory presumption of the culpable state and contended that it is for the petitioner to establish in defence that he did not have the culpable state in causing the delay in filing the return and paying the tax, that it can be done only in the course of trial and that it cannot be decided in a petition filed under Section 482 of the Code. In view of the same, she sought for dismissal of the above petition. 9. This Court has carefully considered the submissions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w.e.f. 1.4.1989, the expression used was "Sub-Section (2) of Section 139". At the relevant point of time the assessing officer was empowered to issue a notice requiring furnishing of a return within the time indicated therein. That means the infractions which are covered by Section 276-CC relate to non-furnishing of return within the time in terms of Sub-Section (1) or indicated in the notice given under Sub-Section (2) of Section 139. There is no condonation of the said infraction, even if a return is filed in terms of Sub- Section (4). Accepting such a plea would mean that a person who has not filed a return within the due time as prescribed under Sub-Sections (1) or (2) of Section 139 would get benefit by filing the return under Section 139(4) much later. This cannot certainly be the legislative intent. Another plea which was urged with some amount of vehemence was that the provisions of Section 276- CC are applicable only when there is discovery of the failure regarding evasion of tax. It was submitted that since the return under Sub-Section (4) of Section 139 was filed before the discovery of any evasion, the provision has no application. The case at hand cannot be covered b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 278-E: Presumption as to culpable mental state- (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation: In this Sub-Section, "culpable mental state" includes intention, motive or knowledge of a fact or belief in, or reason to believe, a fact (2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability'. There is a statutory presumption prescribed in Section 278-E. The Court has to presume the existence of culpable mental state, and absence of such mental state can be pleaded by an accused as a defence in respect to the act charged as an offence in the prosecution. Therefore, the factual aspects highlighted by the appellants were rightly not dealt with by the High Court. This is a matter for trial. It is certainly open to the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leged in the complaint, the offences have been prima facie made out. In view of the same, the statutory presumption under Section 278E of the Act comes into operation. Under such circumstances, this Court, in exercise of its jurisdiction under Section 482 of the Code, cannot disregard the statutory presumption. This Court also cannot go into the facts of the case nor the defence taken by the petitioner to discharge the onus since it will be beyond the jurisdiction under Section 482 of the Code. This exercise can be carried out only in the course of trial since the determination of culpable state of mind is primarily a determination of fact, which requires appreciation of evidence. 18. This Court has consistently taken a stand in a line of recent decisions and it will suffice to take note of the following judgments : "(a) Shri Raman Krishna Kumar Vs. DCIT [Crl.O.P.No.25561 of 2016, dated 26.10.2021]; (b) M/s.World Bridge Logistics Private Ltd. Vs. DCIT [Crl.O.P.No.11998 of 2018, dated 28.1.2022]; and (c) Guruprasad Angisetty Vs. ACIT [Crl.O.P. No.12046 of 2019, dated 30.9.2022]." 19. In the light of the above discussions, this Court does not find any ground to interfere with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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