TMI Blog2023 (8) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... ulness on the part of the petitioner in filing the returns with delay ? - The issue as to whether there was wilfulness in not filing the returns on time and not paying the tax on time, is only a matter of fact, which can be ascertained only through appreciation of evidence. In the light of this provision, this Court, exercising its jurisdiction under Section 482 of the Code, cannot presume innocence or absence of wilfulness on the part of the petitioner. On the other hand, what can be presumed is only culpable mental status and the onus is upon the petitioner to prove the contrary and that can be done only at the time of trial. On the facts alleged 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 show cause notice even though it was served on the petitioner on 16.3.2016. (v) In the light of the above allegations, the Income Tax Department proceeded to file a private complaint against the petitioner for the alleged offences under Sections 276CC and 276C(2) of the Act. Aggrieved by that, the petitioner is before this Court. 3. Heard the learned Senior Counsel appearing on behalf of the petitioner and the learned Special Public Prosecutor appearing for the Income Tax Department. 4. The learned Senior Counsel appearing on behalf of the petitioner submitted that the mere delay in filing the return or the delay in paying the self assessment tax, cannot be a ground to initiate criminal prosecution against the petitioner unless the delay is wilful and wanton and that there is not even an averment to that effect in the complaint. He further submitted that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 learned counsel on either side and perused the materials available on record. 10. Loads of judgments were cited on either side and it is not necessary for this Court to list all those judgments and unnecessarily burden this order. It will suffice to take note of the allegations made and see if the offences are prima facie made out and if necessary, to place reliance upon a couple of judgments. 11. There is no dispute with regard to the fact that the return of income along with the audit report has to be filed on or before 30.9.2013 as per Section 139(1) of the Act for the assessment year 2013-14. Section 139(4) of the Act provides for belated furnishing of return of income till 31.3.2015. The petitioner filed the return of income on 29.3.2015 by admitting an income of Rs.3,48,31,480/- with a tax liability of Rs.1,04,94,060/-. Except filing the retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by the expression in any other case . This argument though attractive has no substance. The provision consists of two parts. First relates to the infractions warranting penal consequences and the second, 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. 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 wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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 appellants to plead absence of culpable mental state when the matter is taken up for trial. 14. It is pellucid from the above judgment that Section 139(4) of the Act cannot, by any stretch, control the operation of Section 139(1) of the Act, which actually fixes the period for furnishing the returns. The term 'wilfully fails to furnish in due time' as contained in Section 276CC of the Act takes within its fold the due time that has been fixed under Section 139(1) of the Act and not the extended time provided under Section 139(4) of the Act. Therefore, the mere filing of return during the extended time will not come to the aid of the petitioner to escape from the criminal prosecution. 15. The next important issue to be considered is as to whether there is wilfulness on the part of the petitioner in fil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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