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TMI Blog2013 (5) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... he income tax return for the assessment year 1994-95 was wilful. That decision of the learned Additional Chief Metropolitan Magistrate was affirmed by the Sessions Court vide order dated 29th September, 2009 when it was challenged by the complainant by way of a revision petition(being Revision Petition No. 06/2008). The complainant felt aggrieved by the revisional Court's order also and so it filed the present petition under Section 482 of the Code of Criminal Procedure, 1973 and Article 227 of the Constitution of India for setting aside the orders of the trial Court as well as of the revisional Court. 2. The relevant facts stated in the complaint of the petitioner complainant are as follows: - "4. That for the assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the relevant Assessment year 1994-1995 only on 1st May, 1995 whereas the Assessee/Accused was required statutorily to file the said returns latest by 31st October, 1994. 7. That a show-cause notice dated 21.8.1998 was served upon the Assessee/Accused seeking the explanation of the accused/Assessee for late filing of the returns. The accused/Assessee had replied to the said show-cause notice vide his reply dated 4th September, 1998. 8. That the accused/Assessee has not rendered any valid and cogent reasons for filing the Income Tax Return for the Assessment year, 1994-95 after the lapse of 7 months. The delay on the part of the accused/Assessee in filing the Return for the relevant Assessment years, mentioned he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment it had failed to establish that the delay was wilful and discharging g the respondent. In support of his submission learned counsel placed reliance on one judgment of the Supreme Court in "Prakash Nath Khanna and Anr. v. Commissioner of Income Tax and Anr.", 2004 Cri.L.J. 3362 = (2004-TIOL-38-SC-IT) and one judgment of this Court in "V.P. Punj v. Asst. Commissioner of Income Tax & Anr.", 2001 VI AD (Delhi) 501. 6. On the other hand it was submitted by Mr. H.R.Khan Suhel, the learned counsel appearing on behalf of the respondent that the Courts below had rightly discharged the respondent. It was also submitted that the Department having accepted the delayed return and penalty etc. for the delayed filing of the return and that too be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Court. After the complaint had been filed the trial Court had found a prima facie for taking cognizance of the said offence and so the respondent was summoned. In the pre-charge evidence adduced by the Department the aforesaid facts were reiterated by the departmental witnesses and the same were not challenged also during their cross-examination on behalf of the respondent. However, the learned trial Court on an erroneous view that it was for the complainant Department to show that failure to file the return within time discharged the respondent by holding that wilful default on the part of the respondent was not established. That conclusion was also erroneous and unsustainable as the learned trial Court conveniently ignored existence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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:. 23. 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 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." 9. This decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns rea against the accused under Section 278-E has to be pressed into service by the Court at the charge stage. 11. Just because the respondent had applied for the compounding of the offence before the filing of the complaint against her in Court, as is was being claimed by her, and the same according to her had not been decided before the filing of the complaint it could not be said that the complaint was not maintainable, as was also the submission of the learned counsel for the respondent not was the trial Court required to examine at the stage of charge as to why the department was not compounding the offence in the case of the respondent herein. If she was aggrieved by any action or inaction on the part of the authority competent to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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