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TMI Blog2016 (3) TMI 1406X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Act. A search was conducted in case of one Dhanraj Manglani Group on 2nd and 3rd July 2012 and the present applicant is one of the assessee of the said group. Search was conducted at the premises of all the family members and various books of account and record, as per the case of petitioner, had been seized. Notice for filing written under Section 153A of the IT Act was issued to the petitioner and others on 4th September 2013, and in response to which, the petitioner filed her return of income for the A.Y 2011-2012 on 9th October 2014 declaring her total net income at Rs. 2,16,76,260/= and tax payable of Rs. 89,96,690/=. It is the case of the petitioner that because of raid by the Income Tax Department, books of accounts and records were seized which took the petitioner and her family to put the house in order and as a result of which, a bona fide delay occurred in filing the return of income under Section 153A of the IT Act. Moreover, it is the case of the petitioner that she was facing financial problems as a result of which it was not feasible for her to pay tax for want of funds and therefore, the petitioner had to apply for loan from the Bank. This issue was als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its and at the discretion of the Director General of Income Tax. There appears to be no such application made by the petitioner. However, it is the grievance of the petitioner that the prosecution came to be lodged against the petitioner on the ground that there was a willful failure on the part of submission of income-tax return under Section 153A of the IT Act, and therefore, the present raising various grounds. It is her say that the entire amount has been made by the petitioner by disclosing her income and paying the entire tax on the said income, and therefore, under Section 279[2] of the Income Tax Act, the offence is compoundable, as there is no delay on the part of the petitioner nor any willful default, as the search for the entire group of family had made it impossible for them to recompile all the documents and set their house in order. It is to be noted that the search was conducted in group of cases which involved plethora of documents, and therefore the element of mens rea which is the pre condition of Section 276 CC of the IT Act is completely missing. Neither there is a willful default nor any mens rea for not filing of the IT return. It is also the say of the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated time period and determine as to whether it was willful or not. He has taken this Court through various documents and in particular the reply to the notice to reiterate his submission that the petitioner has sufficiently explained the reason of delay, which itself would have been sufficient for the respondent not to initiate any prosecution. Learned advocate Mr. KM Parikh appearing for the Income-tax Department has contended that all the averments raised in the petitioner can be the best of the defences available to the petitioner. However, this Court in a petition for quashing preferred under Article 226 of the Constitution of India need not look into the same. This surely is not a malicious prosecution which would require any interference at this stage. According to him, the reason for interference and quashing the complaint should be so powering and mighty that the Court should choose to so do it at the threshold. Otherwise, this can be examined by the Court concerned at the time of appreciation of evidence. He has sought to reply upon the decisions rendered by the Apex Court in case of Prakash Nath Khanna & Anr. vs. Commissioner of Income Tax & Anr., (2004) 9 SCC 686. Hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Section 139 [4]. The Apex Court further held that filing of the return under section 139 [4], even though without any notice from the Assessing Officer to do so does not satisfy the requirement of section 139 [1] and attracts Section 276-CC. Thus, in view of clear provisions of Section 276 attempt to reach a different conclusion by placing reliance on marginal heading or explanatory memo laid before the Parliament at the time of introduction of that section is impermissible. With respect to quashing criminal proceedings under Article 226 of the Constitution of India, the Apex Court held and observed that if the accused challenges the prosecution on the grounds that [a] there was no concealment of income and the allegation of tax evasion was based on no evidence, [b] the delay in filing returns happened in unavoidable circumstances and without any guilty mind, the absence of culpable mental state could be pleaded in defence at the criminal trial and the factual allegations raised by the writ petitioner-accused could then be considered by the trial Court. Apt it would be, to reproduce the relevant findings given in para 21 to 23 of the said decision, which read thus - "21. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 278E. 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." In wake of the discussions above and the decision of the Apex Court rendered in case of Prakash Nath Khanna & Anr. v. Commissioner of Income Tax & Anr. [Supra], this group of petitions deserve no consideration and are accordingly dismissed. Needless to say that all the contentions raised before this Court by the petitioners shall be available to them at the time of trial and dismissal of these petitions and any of the observations made shall not come in the way of the parties co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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