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TMI Blog2024 (2) TMI 1284X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Hence, show cause notice dated 03/08/2017 was issued to the petitioner to show cause as to why prosecution under Section 276CC should not be launched against the petitioner for failing to file the return of income for the Assessment Year 2014-2015. On receipt of this show cause notice, the petitioner gave a reply dated 11/08/2017 by giving some reasons as to why he missed out in filing the returns. 3. The respondent was not satisfied with the reply given by the petitioner and the respondent prime facie found that the non-filing of the return was wilful and hence, proceeded to file the complaint against the petitioner for alleged offence under Section 276CC of the Act. The same has been put to challenge in this quash petition. 4. The learned counsel for the petitioner submitted that there was no wilfulness on the part of the petitioner in not filing the returns and that the petitioner had Tax Deducted at Source standing to his credit to the tune of Rs. 11,34,018/- which covers the entire income earned by the petitioner during the relevant point of time. Therefore, the mere delay in filing the income tax returns due to ill health should not result in a prosecution. 5. The lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available on record. 9. There is no dispute with regard to the fact that the petitioner did not file the returns under Section 139(1) of the Act for the Assessment Year 2014-2015 on or before 31/07/2014. The petitioner for the first time, reacted only after notice under Section 148 of the Act was issued to him. It must be borne in mind that the notice under Section 148 of the Act has nothing to do with the return of income to be filed under Section 139(1) of the Act. This notice is issued only for the purpose of assessing escaped income. Therefore, till the year 2017, the petitioner did not file the returns for the Financial Year 2013-2014 and also did not declare his total income. The petitioner cannot be permitted to take a defence that the Income Tax department issued the notice under Section 148 of the Act with delay and if such a notice had been issued earlier, the petitioner would have immediately responded to the same and also filed the returns. There is no connection between the notice issued under Section 148 of the Act and the duty of the assessee to file the returns under Section 139(1) of the Act. 10. Even after the notice was issued under Section 148 of the Act, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution of the expression "Clause (i) of Sub-Section (1) of Section 142" by Direct Tax Laws (Amendment) Act, 1987 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt which deals with the prosecution case. Section 278-E is relevant for this purpose and the same reads as follows: '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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of evidence. That exercise cannot be carried out in a petition under Section 482 of the Code. 17. 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 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. 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