TMI Blog2023 (11) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner can be considered only before the trial court during the trial since subsequent act of offering additional income payment after search and after detection is not voluntary compliance and it was only during such proceedings it came to light that the petitioner made an attempt to evade the taxes and interest. Hence, it is for the petitioner to rebut the presumption under Section 278E of the Income Tax Act which provides culpable mental state of mind of the accused. In the case on hand, the petitioner failed to file his return of income. After inspection, seized the materials and found that the petitioner concealed the income. Therefore, he was issued notice under Section 153A of Income Tax Act. It was also proved that the petitioner subsequently filed income tax return for the assessment year 2012-2013 on 20.11.2015 showing his income. He suppressed and concealed the said income in the income tax return filed by him on 18.04.2013. Therefore, the above judgment is not applicable to the case on hand. In the case on hand, as stated supra, the mens rea is categorically proved against the petitioner. In his income tax return, he failed to disclose a major portion of income. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difficult for the accused to collect details with regard to 18 assessees in the group. He is aged person and suffering from hypertension and diabetes. Therefore, he was unable to file his return of income. Without being satisfied with the reply submitted by the accused, the respondent filed complaint. 3. The learned counsel for the petitioner would submit that the allegations made in the complaint neither make out any case against the petitioner nor it discloses the ingredients of offence under Section 276CC of Income Tax Act against the petitioner. The trial court had taken cognizance without application of mind and it is against the provisions under Section 153A and 276CC of Income Tax Act. He had submitted his returns as provided under Section 139(1) of the Income Tax Act on 18.04.2013 itself. Therefore, the question of non filing of return does not arise. In fact, the respondent ought to have revealed the said fact that the petitioner already submitted his return of income on 18.04.2013 for the assessment year 2012-2013. If it was disclosed, the sanction would not have been granted to initiate prosecution against the petitioner. Even after receipt of the notice under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) Every person, (a) being a company or a firm or (b) being a person other than a company or a firm, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income-tax, shall, on or before the due date, furnish a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed. 6. Thus, it is clear that the income tax return shall be filed before the due date. It mandates filing of return on or before the due date and non filing of such returns within the time constitutes an offence under Section 276CC of Income Tax Act. Therefore, the petitioner was served notice under Section 153A of Income Tax Act, thereby called upon him to file return of income within the period of 30 days from the date of receipt of the notice. It was duly received by him on 29.04.2014. But the petitioner failed to file his return within the stipulated time. Therefore, he wilfully concealed the purchase of property and he did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 271 of the Income Tax Act. When the ingredients of the offences are clearly made out in the complaint to establish that the accused had committed offence, it cannot be quashed on the ground that the penalty proceedings was dropped against the petitioner. It is relevant to rely upon the judgment of the Hon'ble Supreme Court of India in the case of Radheshyam Kejriwal Vs. State of West Bengal and another reported in (2011) 3 SCC 581 , wherein the following ratio has been stated: (i) Adjudication proceeding and criminal prosecution can be launched simultaneously; (ii) Decision in adjudication proceeding is not necessary before initiating criminal prosecution; (iii) Adjudication proceeding and criminal proceeding are independent in nature to each other; (iv) The finding against the person facing prosecution in the adjudication proceeding is not binding on the proceeding for criminal prosecution; (v) Adjudication proceeding by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20 (2) of the Constitution or Section 300 of the Code of Criminal Procedure; (vi) The finding in the adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revised the returns accordingly. All this was done with a view to buy piece with the Department and the returned income does not represent any concealed income. After considering the said submission, the Hon'ble Supreme Court of India held that the findings of the Appellate Tribunal was conclusive and the prosecution cannot be sustained since the penalty after having been cancelled by the complainant following the Appellate Tribunal's order, no offence survives under the Income Tax Act and thus, quashing of prosecution is automatic. The penalties levied under Section 271(1)(c) were cancelled by the respondent by giving effect to the order of the Income Tax Appellate Tribunal. Therefore, the levy of penalties and prosecution under Section 276C are simultaneous. Hence, once the penalties are cancelled on the ground that there is no concealment, the quashing of prosecution under Section 276C is automatic. 11. Whereas in the case on hand, the petitioner failed to file his return of income. After inspection, seized the materials and found that the petitioner concealed the income. Therefore, he was issued notice under Section 153A of Income Tax Act. It was also proved that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of levying penalty under Section 271(1)(c) of the Act, the return that has to be looked at is the one filed under Section 153A. In fact, the second proviso to Section 153A(1) provides that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in this sub-section pending on the date of initiation of the search under Section 132 or making of requisition under Section 132A, as the case may be, shall abate. Therefore, Section 153A is in the nature of a second chance given to the assessee, which incidentally gives him an opportunity to make good omission, if any, in the original return. Once the assessment officer accepts the revised return filed under Section 153A, the original return under Section 139 abates and becomes non-est. Now, it is trite to say that the concealment has to be seen with reference to the return that it is filed by the assessee. Thus, for the purpose of levying penalty under Section 271(1)(c), what has to be seen is whether there is any concealment in the return filed by the assessee under Section 153A, and not vis-a vis the original return under Section 139. 15. No quarrel that on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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