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TMI Blog2017 (4) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... have proved its case beyond reasonable doubt. In view of the above discussion, the prosecution has failed to prove the guilt of the accused conclusively and beyond the scope of reasonable doubt. The findings of the learned Court below are not required to be interfered with. Thus,the present appeal, being devoid of merits, deserves dismissal and is accordingly dismissed. - Cr. Appeal No. 166 of 2008 - - - Dated:- 19-4-2017 - Chander Bhusan Barowalia , JJ. For the Appellant : Mr. Vinay Kuthiala, Senior Advocate with Mr. Diwan Singh Negi, Advocate For the Respondents : Mr. Vishal Mohan and Mr. Sanjay Prashar, Advocates ORDER Per Chander Bhusan Barowalia, J. The present appeal is maintained by the Assistant Commissioner, Income Tax against the respondents assailing the judgment passed by learned Chief Judicial Magistrate, Shimla on 14.8.2007 in Case No. 33/3 of 1996, titled as ACIT Vs. Janeshwar Lal Rajeshwar Lal others, whereby the learned Chief Judicial Magistrate, Shimla acquitted the respondents for the commission of offence under Sections 276 (CC) read with Section 278 (B) of the Income Tax Act. At the very outset, it is necessary to mention that res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (CC) read with Section 278 B of the Act and were liable to be convicted as per the provisions of the Act. Learned Court below, just on the basis of surmises and conjectures, acquitted the accused. 5. On the other hand, learned defence counsel has argued that the learned Court below has committed no illegality, as the prosecution has failed to prove the guilt of the accused, including the mens rea on their part of delay in filing the return. However, the Commissioner, as required under law, never issued any notice compounding the offence before giving the sanction to prosecute, that too after 10 years. He has argued that the present appeal deserves dismissal, as there is nothing to suggest that interference of this Court is required. 6. To appreciate the arguments of learned counsel for the parties, I have gone through the record carefully. 7. From the record, it is clear that the accused persons have not concealed their income and in an appeal qua the penalty, the penalty has been held not recoverable by the Income Tax Appellate Tribunal. 8. Now, the Court below while dealing with the appeal, in submitting the return, has taken into consideration the fact that accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for not filing the return in time. 12. The have also examined Shri Dev Datti Dass Gupta as DW-3, who too has stated that from 1973 to 1988, he was posted as HOD of the Medicine Department, IGMC, Shimla. According to him, he was known to Dr. A.N. Mahrotra, who too retired from IGMC, Shimla in the year 1984-85. He has proved on record the prescription slip, Ext. DW3/A to Ex. DW3/C and as per said prescription, Rajeshwar Lal Jain was suffering from diabetes and angina and that angina is a heart problem and as per Ex., DW2/B, Rajeshwar Lal Jain was suffering from hypertension disease. According to him, Ex. DW3/C, pertain to his unit, according to which, from 5.11.1990 to 9.11.1990, said Rajeshwar Lal Jain remained admitted in the hospital in the CCU ward for coronary artery heart disease. According to him, patients suffering from such a disease are unable to do hard work. He too has been crossexamined, but without any assistance. It is, therefore, apparent that accused No. 2 was suffering from aforesaid disease and was unable to undertake hard work and since he only was maintaining the accounts of the accused No. 1, firm qua filing the returns, certainly it was not possible for him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 271(1)(a) which requires that mens rea must be proved before penalty can be levied under that provision. We are supported by the statement in Corpus Juris Secundum, Volume 85, Page 580, paragraph 1023. 15. The Hon ble High Court of Andhra Pradesh in Income Tax Officer versus Autofil and others, ITR Vol. 184 (1990) 47 has held as under: Conviction under Section 276 CC is an extreme and exceptional resort and gets warranted only when willfulness in failure to submit the return in time is established beyond all reasonable doubt and there should be the presence of mens rea, a bad motive and a guilty mind. In the absence of this, no conviction shall follow the prosecution under Section 276 CC of the Income Tax Act. There is a clear explanation given by A-3 that he was not conversant with the preparation of the profit and loss account and the balance-sheet. Equally so is his colleague, Satyanarayana. Their clerk happened to fall ill. Even if, for any reason, the explanation does not receive acceptance, still the conduct of the respondents in paying the advance tax, the penal interest and penalty and want of mens rea absolve them from criminal liability. I, according ..... X X X X Extracts X X X X X X X X Extracts X X X X
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