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TMI Blog2023 (12) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... dmittedly, the petitioner had paid taxes under the Heads of Advance Tax, TDS, TCS, Self Assessment Tax to the tune of Rs. 23,75,066/-. According to his returns, the total tax and interest payable by him is Rs. 23,74,610/-. Therefore, he claimed refund of Rs. 460/- and the proviso (ii) b of Section 276CC comes for rescue of the petitioner from the rigor of the prosecution under Section 276CC of the Income Tax Act. Therefore, the initiation of prosecution for the offence punishable u/s 276CC of the Income Tax Act cannot be sustained as against the petitioner and it is liable to be quashed. Decided in favour of assessee. - Honourable Mr.Justice G.K.Ilanthiraiyan For the Petitioner : Mr.P.Ramesh Kumar For the Respondent : Mr.L.Murali Krishnan, Special Public Prosecutor for Income Tax ORDER This criminal original petition has been filed to quash the proceedings in EOCC.No.168 of 2016 on the file of the learned Additional Chief Metropolitan Magistrate, (E.O-II) Egmore, Chennai taken cognizance for the offence punishable under Section 276CC of the Income Tax Act, 1961. 2. The respondent filed complaint for the offence punishable under Section 276CC of the Income Tax Act for non filing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing for the respondent, submitted that admittedly the petitioner failed to file his income of returns for the assessment year 2013-2014. Even after issuance of notice under Section 276 CC of Income Tax Act, the petitioner did not come forward to file his return of income. Therefore, the respondent rightly initiated prosecution as against the petitioner under Section 276CC of the Income Tax Act. Therefore, the petitioner cannot claim any benefit under proviso to subclause ii(b) of Section 276CC of the Income Tax Act. In support of his contention, he relied upon the judgment of the Hon'ble Supreme Court of India in the case of Sasi Enterprises Vs. Assistant Commissioner of Income Tax reported in (2014) 5 SCC 139 , wherein it is held as follows: 22. The constitutional validity of Section 276CC, was upheld by the Karnataka High Court in Sonarome Chemicals Pvt. Ltd. and others v. Union of India and others (2000) 242 ITR 39 (Kar) holding that it does not violate Article 14 of 21 of the Constitution. Section punishes the person who willfully fails to furnish the return of income in time . The explanation willful default, as observed by Wilber Force J. in Wellington v. Reynold (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etection of the failure to file the return and after a notice under Section 142(1)(i) or 148 of the Act is issued calling for filing of the return of income. Proviso, therefore, envisages the filing of even belated return before the detection or discovery of the failure and issuance of notices under Section 142 or 148 of the Act. 25. We may in this respect also refer to sub-section (4) to Section 139 wherein the legislature has used an expression whichever is earlier . Both Section 139(1) and Sub-Section (1) of Section 142 are referred to in sub-section (4) to Section 139, which specify time limit. Therefore, the expression whichever is earlier has to be read with the time if allowed under sub-section (1) to Section 139 or within the time allowed under notice issued under sub-section (1) of Section 142, whichever is earlier. So far as the present case is concerned, it is already noticed that the assessee had not filed the return either within the time allowed under sub-section (1) to Section 139 or within the time allowed under notices issued under sub-section (1) to Section 142. 26. We have indicated that on failure to file the returns by the appellants, income tax department made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e initiated against the petitioner for his wilful failure to furnish the return of income within the stipulated time as mandated under Section 139(1) of the Income Tax Act. On receipt of the same, the petitioner filed his income of return on 14.01.2019. Accordingly, the petitioner had paid Advance Tax, TDS, TCS, Self Assessment Tax, in total a sum of Rs. 23,75,066/- He also claimed refund of Rs. 460/-. Therefore, the petitioner paid tax to the tune of Rs. 23,75,066/- for the assessment year 2013-2014. It is relevant to extract provision under Section 276CC of Income Tax Act hereunder: 276 CC - Failure to furnish returns of income - If a person willfully fails to furnish in due time (the return of fringe benefits which she is required to furnish under Sub-Section (1) of section 115WD or by notice given under sub-Section (2) of the said section or Section 115 WH or] the return of income which he is required to furnish under sub-section (1) of section 139 or by notice given under [clause (i) of sub-section (1) of section 142] or section 148 [or section 153A], he shall be punishable, i) In a case where the amount of tax, which would have been evaded if the failure had not been discover ..... X X X X Extracts X X X X X X X X Extracts X X X X
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