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TMI Blog2018 (10) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of this Court, the revisional court took the correct view in the case of complaints relating to AY 2004-05 and 2005-06, but fell into error in the context of complaint relating to AY 2003-04. There was no case made out for discharge of assessee in the latter case. - CRL.M.C. 3385/2016 & Crl.M.A. 14338/2016, 1336/2017, 11516/2017, CRL.M.C. 3390/2016 & Crl.M.A. 14350/2016, 1259/2017, 11517/2017, CRL.M.C. 3407/2016 - - - Dated:- 14-9-2018 - MR. R.K. GAUBA J. Petitioner Through: Mr. J.S. Bakshi Mr. A.S. Bakshi, Advs. Respondent Through: Mr. Zoheb Hussain, Sr. Standing counsel with Mr. Deepak Anand, Jr. Standing counsel for Revenue. ORDER (ORAL) 1. The respondent in the first and second captioned petitions (the complainant) is the assessing authority in respect of the petitioner in the first and second captioned petitions (the accused), under the Income Tax Act, 1961. It appears to be an undisputed case that the petitioner had failed to submit his return of income-tax for assessment years (AY) 2003-2004, 2004-2005 and 2005-2006, within the time stipulated for the purpose, under Section 139 (1) of the Income Tax Act, 1961 (IT Act). In the wake of this fact and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 397 (3) Cr.P.C. 6. This Court in an almost similar fact-situation, taking note of the decisions of the Supreme Court reported as Krishnan Vs. Krishnaveni, (1997) 4 SCC 241; Rajinder Prasad Vs. Bashir, (2001) 8 SCC 522 and Kailash Verma vs. Punjab State Civil Supplies Corporation Anr., (2005) 2 SCC 571 and following similar view taken by a learned single Judge of this Court in Surender Kumar Jain vs. State Anr., ILR (2012) 3 Del 99 in absence of a special case being made has earlier declined to interfere by the ruling (dated 03.07.2018) in Crl.M.C. 164/2018 Ajay Maini vs. The State Govt. of NCT of Delhi Ors. in exercise of extraordinary jurisdiction under Section 482 Cr.P.C. 7. Be that as it may, the contentions of the petitioner accused in those matters have still been considered to find out as to whether there has been a miscarriage of justice in the consistent view taken by the two courts below in the context of the said two complaints. 8. Section 139 of the IT Act creates an obligation on the part of every person whose total income assessable during the previous year exceeds the maximum amount which is not chargeable to income-tax to furnish a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice to such effect was not properly construed. 12. In the context of complaint for AY 2003-04, it was pointed out that notice under Section 142 (1) of IT Act (Ex.PW-2/4) had been followed by a fresh notice (Ex.PW-2/5) and since the said notice had not indicated any date by which compliance was to be made the assessee could not have been found to be in breach of the statutory obligation and, consequently, he could not be prosecuted for offence under Section 276 CC. 13. The afore-mentioned contentions of the assessee accused in the complaints relating to AY 2004-05 and 2005-06 were rejected by the ACMM and by the revisional court as well with reference, inter alia, to the decision of the Supreme Court in Sasi Enterprises v. Assistant Commissioner of Income Tax (2014) 5 SCC 139, noting that the offence under Section 276 CC stands committed upon the non-filing of the return and it is unrelated to the pendency of the assessment proceedings except for purposes of determination of the sentence that may be awarded. Reference was also made to the presumption raised by virtue of the provision contained in Section 278 E of the culpable mental state. 14. The contention of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e language of Section 276-CC, in our view, is clear so also the legislative intention . 16. The offence under Section 276 CC of IT Act deals with failure to comply with the obligation under Sections 139 (1) or 142(1) or 148 of IT Act. Disobedience of each said provision of law itself constitutes a distinct offence. The offence under Section 276 CC, prima facie, stood constituted upon failure on the part of the assessee to furnish the return of income for the assessment year in question within the period prescribed in law. The notices by the assessing authority under Section 142 (1) were issued with the objective of facilitating best judgment assessment. The failure to abide by such notices would also constitute offence, distinct from the offence that had been earlier committed by virtue of breach of Section 139 (1). The assessment proceedings are not related to these criminal prosecutions. They may eventually have a bearing for the benefit of proviso to Section 276CC to be invoked but not so as to inhibit continuation of the criminal process. 17. In the context of complaint relating to AY 2003-04, the evidence of complainant had shown disobedience of Section 139 (1) by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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