TMI Blog2023 (12) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... omplete and there can be a presumption for existence of mens rea and it is for the accused to prove the contrary beyond reasonable doubt, only before the trial court during the trial. Therefore, 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 before the trial court. Therefore, these grounds cannot be considered by this Court, that too under Section 482 of Cr.P.C since onus is upon the petitioner to rebut the presumption and that can be done only before the trial court during the trial by letting in evidence. Petitioner vehemently contended that once notice issued u/s 153A of the Act, it overrides all other provisions such as Sections 139, 147, 148, 149, 151 and 153 of the Act - If a person wilfully fails to furnish in due time, the return of income which he is required to furnish under sub section (1) of Section 139 or by notice given by sub section (1) of Section 142 or Section 148 shall be punishable. Therefore, the search under Section 132 and subsequent notice under Section 153A are completely different from filing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bound to file his return of income on or before 30.09.2013 for the assessment year 2013-2014. A search was conducted as per Section 132 of the Act on 03.09.2013. Subsequent to the search, a notice was issued as contemplated under Section 153A of the Act, thereby called upon to file his return of income within a period of 30 days from the date of receipt of the notice. It was duly received and the petitioner failed to file his return of income within the time mentioned in the notice. Once again, a reminder letter was also sent to the petitioner dated 15.07.2014 and 02.06.2015. The petitioner filed reply on 08.06.2016, but no valid reasons were stated for non filing of return of income. But he filed the same only on 19.07.2016 with a delay of more than 15 months and thereby declared his total income of Rs. 2,32,48,580/- for the assessment year 2013-2014. Non filing of the income tax return within the time limit is wilful and deliberate on the part of the petitioner. The assessment proceedings was completed for the assessment year 2013-2014 on 12.08.2016 thereby the total income of Rs. 3,98,72,510/- was determined against the returned income filed by the petitioner to the tune of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 153B of the Act provides two years for completion of the assessment, the petitioner was provided only one month to file his return of income, that too for all the six assessment years. After receipt of the reminders from the authorities, the petitioner had sent reply stating that there was an erroneous calculation of tax that is due and tax deducted at source was not adjusted to the tune of Rs. 47,66,509/- for the assessment year 2013- 2014 since it was deducted before the due date. The petitioner had collected service tax to the tune of Rs. 52,18,727/- and had duly paid on 15.05.2014. Therefore, the petitioner sought for further time to file his return of income for all six previous assessment years. Therefore, the delay is only for bonafide reasons and not wilful or wanton. 3.1 He further submitted that as per Section 245C of the Act, the petitioner filed application declaring his income before the settlement commission in the month of March 2016 by making further deposit of Rs. 38,49,956/- as additional payment of taxes. However, the application before the settlement commission was rejected on technical grounds. Thereafter, the petitioner filed his return of income on 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income voluntarily as contemplated under Section 139(1) available till 30.09.2013. There was non filing of return of income even till 29.01.2014 and as such, notice under Section 153A of the Act was sent to the petitioner. By not filing the returns within the time mandated under Section 139(1), 139(4) or in response to the notice under Section 153A of the Act, offence for non filing of returns is attracted. Only after filing the return of income, the assessment can be completed within the time. Therefore, the provision under Section 153B is applicable only for completion of assessment by the assessment officer proceedings post search. The TDS was deducted by their parties and not by the petitioner. The petitioner was having huge taxable income which mandated the filing of returns. Further, there was filing of application before the settlement Commission and the same was rejected on two occasions. Further, the petitioner had disclosed his income of return to the tune of Rs. 2,32,48,580/-. As per the assessment order, a total income was assessed to the tune of Rs. 3,98,72,510/-. Therefore, there was penalty proceedings initiated under Section 271 of the Act. Though the petitioner had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. (viii) In our opinion, therefore, the yardstick would be to judge as to whether allegation in the adjudication proceeding as well as proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceeding is on merits. 7. Therefore on the ground of pending appeal, the proceedings initiated by the respondent cannot be quashed and the petitioner cannot be exonerated from prosecution. Admittedly, the petitioner had filed his return of income only on 19.07.2016. Therefore, it cannot be treated as compliance of provision under Section 139(1) or 139(4) or under Section 153A of the Act. Even after receipt of several communications from the respondent, the petitioner failed to file his return of income. It is relevant to extract provision under Section 276CC of the Act hereunder: 276 CC - Failure to furnish returns of income - If a person willfully fails to furnish in due time (the return of fringe benefits which she is required to furnish under Sub-Section (1) of section 115WD or by notice given under sub-Section (2) of the said section or Section 115 WH or] the return of income which he is required to furnish under sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od is a duty cast on any person who has to declare the income and file the returns and pay the taxes within the stipulated time. 10. The only contention raised by the petitioner is that the search conducted was premature since the tax due was only on 30.09.2013. Whereas the search was conducted on 03.09.2013. Though the search was conducted on 03.09.2013, it is not an impediment for the petitioner to file his return of income on or before 30.09.2013. Filing return of income is mandatory as contemplated under Section 139(1) of the Act. Therefore, mere search conducted by the authority concerned would not preclude the petitioner to file his return of income. Further, it is mandatory in nature and further expanded that if the returns are not filed within the stipulated time, then a presumption as to the culpable mental state can be drawn under Section 278E of the Act. The non filing of return of income within the time as stipulated under Section 139(1) and 153 of Act, offence stands complete and there can be a presumption for existence of mens rea and it is for the accused to prove the contrary beyond reasonable doubt, only before the trial court during the trial. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 148 shall be punishable. Therefore, the search under Section 132 and subsequent notice under Section 153A are completely different from filing the return of income as contemplated under Section 139(1) of the Act. At any point of time, a search can be made under Section 132 of the Act if any incriminating material to show that the assessee evaded certain income in his return of income, notice under Section 153 will be issued to file his return of income for the concealed income. Therefore, the above judgment is not applicable to the case on hand. 13. It is true as per search under Section 132 or requisition under Section 132A, the assessment officer assessed or re-assessed the total income in respect of each assessment year falling within six assessment years, taking into consideration of the incriminating materials collected during the search and other material pending would abate. It is nothing to do with the mandatory provision under Section 139(1) of the Act to file his return of income. Admittedly, in the case on hand, the petitioner failed to file his return of income on or before 30.09.2013. Further, there was not even an attempt by the petitioner to file his return of in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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