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TMI Blog2024 (2) TMI 1284X X X X Extracts X X X X X X X X Extracts X X X X ..... ume the culpable mental status of the petitioner and the onus is upon the petitioner to prove the contrary and that can be done only at the time of the trial. There is no dispute with regard to the fact that the petitioner did not file the returns under Section 139(1) of the Act for the Assessment Year 2014-2015 on or before 31/07/2014. The petitioner for the first time, reacted only after notice u/s 148 of the Act was issued to him. It must be borne in mind that the notice u/s 148 of the Act has nothing to do with the return of income to be filed u/s 139(1) of the Act.There is no connection between the notice issued u/s 148 of the Act and the duty of the assessee to file the returns under Section 139(1) of the Act. it is not as if the petitioner has paid the tax and there was only a delay in filing the returns. The petitioner cannot assume that the Tax Deducted at Source will cover the entire tax liability for the relevant Assessment Year even without filing his returns and declaring his total income. As petitioner submitted that an appeal has been filed against the assessment order and the same is pending before the appellate authority and therefore, the prosecution cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfied with the reply given by the petitioner and the respondent prime facie found that the non-filing of the return was wilful and hence, proceeded to file the complaint against the petitioner for alleged offence under Section 276CC of the Act. The same has been put to challenge in this quash petition. 4. The learned counsel for the petitioner submitted that there was no wilfulness on the part of the petitioner in not filing the returns and that the petitioner had Tax Deducted at Source standing to his credit to the tune of Rs. 11,34,018/- which covers the entire income earned by the petitioner during the relevant point of time. Therefore, the mere delay in filing the income tax returns due to ill health should not result in a prosecution. 5. The learned counsel for the petitioner further submitted that the respondent issued a notice under Section 148 of the Act after a very long time and an assessment order was also passed under Section 147 of the Act. The petitioner has also filed an appeal before the Appellate authority against the assessment order and the same is pending. In view of the same, it was contended that a criminal prosecution was not warranted in this case and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be filed under Section 139(1) of the Act. This notice is issued only for the purpose of assessing escaped income. Therefore, till the year 2017, the petitioner did not file the returns for the Financial Year 2013-2014 and also did not declare his total income. The petitioner cannot be permitted to take a defence that the Income Tax department issued the notice under Section 148 of the Act with delay and if such a notice had been issued earlier, the petitioner would have immediately responded to the same and also filed the returns. There is no connection between the notice issued under Section 148 of the Act and the duty of the assessee to file the returns under Section 139(1) of the Act. 10. Even after the notice was issued under Section 148 of the Act, the petitioner filed his returns declaring his total income as Rs. 29,50,000/- but however, the assessing officer after the completion of the assessment proceedings, found that the total income of the petitioner is Rs. 54,09,683/- and the tax liability after adjustment of TDS was Rs. 10,11,169/-. Therefore, it is not as if the petitioner has paid the tax and there was only a delay in filing the returns. The petitioner cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-furnishing of return within the time in terms of Sub- Section (1) or indicated in the notice given under Sub- Section (2) of Section 139. There is no condonation of the said infraction, even if a return is filed in terms of Sub- Section (4). Accepting such a plea would mean that a person who has not filed a return within the due time as prescribed under Sub-Sections (1) or (2) of Section 139 would get benefit by filing the return under Section 139(4)much later. This cannot certainly be the legislative intent. Another plea which was urged with some amount of vehemence was that the provisions of Section 276- CC are applicable only when there is discovery of the failure regarding evasion of tax. It was submitted that since the return under Sub-Section (4) of Section 139 was filed before the discovery of any evasion, the provision has no application. The case at hand cannot be covered by the expression in any other case . This argument though attractive has no substance. The provision consists of two parts. First relates to the infractions warranting penal consequences and the second, measure of punishment. The second part in turn envisages two situations. The first situa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation: In this Sub-Section, culpable mental state includes intention, motive or knowledge of a fact or belief in, or reason to believe, a fact (2) For the purposes of this 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'. There is a statutory presumption prescribed in Section 278-E. 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. 14. It is pellucid from the above judgment that Section 139(4) of the Act cannot, by any stretch, control the operation of Section 139(1) of the Act, which actually fixes the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Code, cannot disregard the statutory presumption. This Court also cannot go into the facts of the case nor the defence taken by the petitioner to discharge the onus since it will be beyond the jurisdiction under Section 482 of the Code. This exercise can be carried out only in the course of trial since the determination of culpable state of mind is primarily a determination of fact, which requires appreciation of evidence. 18. This Court has consistently taken a stand in a line of recent decisions and it will suffice to take note of the following judgments : (a) Shri Raman Krishna Kumar Vs. DCIT [Crl.O.P.No.25561 of 2016, dated 26.10.2021]; (b) M/s.World Bridge Logistics Private Ltd. Vs. DCIT [Crl.O.P.No.11998 of 2018, dated 28.1.2022]; and (c) Guruprasad Angisetty Vs. ACIT [Crl.O.P. No.12046 of 2019, dated 30.9.2022]. 12. The learned counsel for the petitioner submitted that an appeal has been filed against the assessment order and the same is pending before the appellate authority and therefore, the prosecution cannot be continued. There is no basis for this submission and the mere pendency of the appellate proceedings is not a relevant factor for initiat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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