9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (12) TMI 225 - HC - Income TaxOffence u/s 276CC - petitioner failed to file his return of income for the assessment year 2013-2014 as required under Section 139 - only contention raised by the petitioner is that the search conducted was premature since the tax due was only on 30.09.2013 - HELD THAT - 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 u/s 139(1) - 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 u/s 278E - 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 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 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. It is true as per search u/s 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 u/s 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 income till 29.01.2014 as contemplated under Section 139 sub clause (4) of the Act till the notice under Section 153A. That apart, the petitioner also failed to file his return of income even after receipt of the notice under Section 153A of the Act within the period of 30 days from the date of receipt of the notice under Section 153A of the Act. Therefore, the respondent rightly initiated prosecution against the petitioner and this Court finds no grounds to quash the same. Accordingly, this criminal original petition is dismissed. Consequently, connected miscellaneous petition is closed.
Issues Involved:
1. Non-filing of income tax return within the stipulated time. 2. Validity of prosecution under Section 276CC of the Income Tax Act. 3. Impact of pending appeal on prosecution proceedings. Issue 1: Non-filing of Income Tax Return within the Stipulated Time The petitioner failed to file his return of income for the assessment year 2013-2014 by the due date of 30.09.2013, as required under Section 139 of the Income Tax Act. A search was conducted on 03.09.2013, and a notice under Section 153A was issued, requiring the petitioner to file his return within 30 days. Despite reminders, the petitioner filed his return only on 19.07.2016, with a delay of over 15 months, declaring an income of Rs. 2,32,48,580/-. The assessment was completed on 12.08.2016, determining a total income of Rs. 3,98,72,510/-. Penalty proceedings under Section 271F were initiated due to the delay. Issue 2: Validity of Prosecution under Section 276CC of the Income Tax Act Sanction for prosecution under Section 276CC was granted after the petitioner failed to provide valid reasons for the delay. The petitioner argued that the delay was due to a change in auditors, obtaining copies of seized documents, and approaching the settlement commission. However, the court noted that the petitioner had substantial income and was required to file returns under Section 139(1). The court emphasized that the non-filing of returns within the stipulated time attracts the offence under Section 276CC, and subsequent filing does not protect from prosecution. The Supreme Court rulings in P.Jayappan and Kejriwal cases were cited, affirming that adjudication and prosecution proceedings are independent, and prosecution can proceed regardless of pending adjudication. Issue 3: Impact of Pending Appeal on Prosecution Proceedings The petitioner contended that the prosecution was premature due to a pending appeal against the assessment order. However, the court held that the pendency of an appeal does not bar prosecution. The Supreme Court in Prakash Nath Khanna and Sasi Enterprises cases clarified that failure to file returns within the due time completes the offence under Section 276CC, and subsequent compliance does not negate the offence. The court also distinguished the present case from the Abhisar Buildwell case, noting that the prosecution under Section 276CC is independent of the assessment process under Section 153A. Conclusion The court dismissed the petition to quash the prosecution, holding that the petitioner failed to file returns within the mandated time, and the prosecution under Section 276CC was valid. The court emphasized that the issue of wilfulness and mens rea can only be determined during the trial.
|
