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TMI Blog1988 (3) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... s 1983-84 and 1984-85. The first respondent, being the Income-tax Officer, " D " Ward, District IV(I), Calcutta, completed the assessment for the assessment year 1982-83 under section 143(1) of the said Act on December 16, 1985. After adjustment of the tax of Rs. 4,645 paid on self-assessment for the assessment year 1982-83, the petitioner was required to pay a further sum of Rs. 3,036 which the petitioner paid on December 20, 1986. In the assessment, the Income-tax Officer charged interest under section 139(8) of the Act up to the date of filing the return. He also charged interest under sections 217 and 220(2) of the Act. The first respondent also initiated penalty proceedings by a notice dated December 16, 1985, for the said assessment year 1982-83 under section 271(1)(a) of the said Act for failure to furnish the return of income within the time allowed under section 139(1) of the said Act. The first respondent, however, has not so far imposed any penalty under section 271 (1)(a) of the said Act and the said proceedings are still pending. In February, 1987, the petitioner was served with a summons dated November 13, 1986, issued by the Chief Metropolitan Magistrate, Calcu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner, has contended that the delay in filing the returns was not due to any conscious disregard of its obligation under the Act and was not contumacious or deliberate. But the principal contention is that the Income-tax Officer, having charged interest under section 139(8) of the Act for delay in filing the return while making the assessment for the assessment year 1982-83, cannot initiate criminal proceedings for the self-same delay. Reliance has been placed on a decision of this court in the case of Dooars Transport v. CIT [1986] 162 ITR 383. In that case, for the assessment years 1964-65 and 1966-67 to 1969-70, the assessee was required to file returns under section 139 of the Income-tax Act, 1961, as it stood at the relevant time by June 30 of the respective calendar years 1964, 1966, 1967, 1968 and 1969. For the assessment year 1966-67, the assessee filed an application on September 30, 1966, praying for extension of time by three months for submission of the returns. No order was communicated to the assessee in respect of the said application. In respect of the assessment year 1968-69, time to file the return was extended till December 31, 1968, and for the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come-tax Officer, the charging of interest up to the dates of the filing of the returns after the extended period gives rise to a presumption of further extension of time for filing of the returns." It is, therefore, contended that if for the delay in filing the return, no penalty can be imposed as interest was charged, no criminal prosecution can be initiated for such default either. It is contended on behalf of the respondents by Mr. Mihir Bhattacharjee, learned advocate, that since the prosecution has been launched and the learned Metropolitan Magistrate has taken cognizance of the same, this court should not at this stage quash the proceeding. If the Department cannot prove the case, the petitioner will be acquitted. He has submitted that the facts disclose an offence which should be tried by the learned Metropolitan Magistrate. I am, however, unable to accept the contentions of Mr. Bhattacharjee. A criminal prosecution for an offence under a special statute must not be initiated as a matter of course where the prosecution would involve intricate questions of interpretation of the Income-tax Act. The Department should not rush with the prosecution without any determinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fault in filing the return, no prosecution can be launched. From the complaint that has been filed in this case, it appears that no case of wilful default has been made out. It was, inter alia, stated in the said complaint (a) that the accused was under a statutory obligation under section 139(1) of the Income-tax Act, 1961, to file the return of income for the assessment year 1982-83 for the financial/accounting period ending on March 31, 1982, on or before July 31, 1982. The accused failed and neglected to furnish the said return of income by the due date ; (b) that the accused ultimately furnished the said return of income on February 15, 1985, instead of July 31, 1982. (c) that it appears from the records that the accused is a habitual defaulter in filing his return of income; (d) that from the facts and circumstances stated above, it will appear that the accused has committed an offence punishable under section 276CC(ii) of the Income-tax Act, 1961. In my view, the complaint does not disclose any offence at all. When the Income-tax Officer levies interest up to the date of the filing of the return, it must be presumed that the Income-tax Officer had extended the time ..... X X X X Extracts X X X X X X X X Extracts X X X X
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