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TMI Blog2021 (9) TMI 1558X X X X Extracts X X X X X X X X Extracts X X X X ..... ucts and others [ 1999 (12) TMI 63 - SUPREME COURT] wherein, it is held that or in its natural sense denotes an alternative and is not read as substitutive . In case of Union of India (UOI) and Ors. vs. Ind- Swift Laboratories Ltd. [ 2011 (2) TMI 6 - SUPREME COURT] it is held that where provision is clear and unambigous the word or cannot be read as and by applying the principle of reading down. Thus, when examined in light of said legal position, then the argument that applicant had already furnished his return in terms of Section 139 (4) will not take away the liability of filing the return in due time as mentioned in Section 276-CC, merely because no notice was issued prior to filing of the return. As in the light of the law laid down by Supreme Court in case of Prakash Nath Khanna and another [ 2004 (2) TMI 3 - SUPREME COURT] the ratio being that, though, plea of lack of culpable mental state may be evoked by an accused in defense, but that cannot be seen at the time of filing of the complaint or at the stage of taking of the cognizance in terms of the provisions contained in Section 278-E(1) of the Income Tax Act, 1961, which deals with presumption of existence of such mental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad filed income tax return though belatedly on 31.03.2017 alongwith penalty and interest, thus there being no mens-rea on the part of the applicant, therefore, issuance of show cause notice after applicant had made compliance and deposited the tax did not call for any action. It is submitted that it is not a case of failure to furnish returns of Income Tax so to attact action under Section 276-CC of the Income Tax Act, 1961, merely because assessee had filed his return belatedly by 19 months. 7. Applicant has placed reliance on Circular No.24 of 2019 dated 09.09.2019 issued by the Central Board of Direct Taxes, New Delhi, Annexure-5, to the petition to point out that in this circular in Clause-(4), it is mentioned that cases where the amount of tax, which would have been evaded if the failure had not been discovered, is Rs. 25 lakhs or below, shall not be processed for prosecution except with the previous administrative approval of the Collagium of 2CCIT/DGIT rank officers as mentioned in para-3. It is submitted that in terms of this circular also, since liability of tax is less than Rs. 25 lakhs, no action is warranted on part of the respondents. 8. Reliance is placed on the judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed off. 12. Reliance is also placed on the provisions contained in Section 278-E of the Income Tax Act, which deals with presumption as to the culpable mind and reads as under:- 278-E.(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state, but it shall be a defense for the accused to prove the fact that he had no such mental state with respect to the Act charged as an offence in the 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. 13. Reliance is also placed on the judgment of Supreme Court in case of Rakapalli Raja Rama Gopala Rao vs Naragani Govinda Sehararao another; AIR 1989 SC 2185, wherein, it is held that an act is said to be wilful, if it is intentional, conscious and deliberate. 14. Similarly, reliance is placed on the judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Theni; [2021 (277) Taxman 437 (Madras)], wherein, it is held that if assessee failed to file return in time and files it later on, then revenue s complaint against assessee under Section 276-C(1)(i) and Section 276-CC is nothing but clear abuse of process of law and it cannot be substantiated. 18. Reliance is also placed on the judgment of Supreme Court in case of Suresh Sholapurmath Vs. Income Tax Department; (2017) 397 ITR 147, wherein, it is held that in view of the fact that total amount involved was below Rs. 25,000/- and same had already been paid with interest long ago, proceeding under Section 276-C/277 initiated against assessee were quashed in favour of the assessee. 19. Reliance is also placed on the judgment of High Court of Kerala in case of Forzza Projects (P) Ltd. and others Vs. Principal, Commissioner of Income Tax, Kochi and others; [2021 (2) KLJ 473], wherein, it is held that if there was only a failure on part of the assessee to pay tax in time, which was later on paid after availing installment facilities with interest, then mere failure to pay income tax based on self assessment would not constitute offence under Section 276-C(2). 20. Learned counsel for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not dilute the infraction in not furnishing the return in due time as prescribed under sub-Section (1) of Section 139. Otherwise, the use of expression in due time would lose its relevance and it cannot be said that the said expression was used without any purpose. Before substitution of expression Clause (1) of sub-Section (1) of Section 142 by Direct Tax Laws (Amendment) Act, 1987, w.e.f. 01.04.1989, the expression used was sub- Section (2) of Section 139 . At the relevant point of time, the assessing officer was empowered to issue a notice requiring furnishing of a return within the time indicated therein. That means the infractions which are covered by Section 276-CC relate to non-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 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-Section (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 inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 25. After hearing learned counsel for the parties and going through the material produced by them certain facts needs to be answered namely, Circular No.24 of 2019 dated 09.09.2019 has no retrospective application as is evident from the law laid down in case of M/s. Jay Mahakali Rolling Mills Vs. Union of India and others (supra) and law laid down in case of Director of Income Tax Circle 26 (1), New Delhi Vs. S.R.M.B. Dairy Farming (P) Ltd. (supra) will not be applicable looking to the language of the circular itself as is used in para- 5 of the circular specifically providing that it shall be applicable only to all pending cases, where complaint is yet to be filed, when, admittedly, complaint was filed prior to coming into force of this circular. 26. Similarly, law laid down in case of S.C. Naregal Vs. Commissioner of Income Tax, Hubli (supra) will also not be applicable and on its own facts, these judgments are distinguishable and will not apply to the facts and circumstances of the present case. 27. Similarly, reliance is placed on Circular dated 24.04.2008 to demonstrate that for offences under Section 278, it provides that in case of an individual, he shall not ordinarily be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of a clause like Clause (5) in C.B.D.T. Circular No.24 of 2019, specifying conditions as to the date and time of applicability. 32. Judgment in case of Forzza Projects (P) Ltd. Vs. Principal Commissioner of Income Tax (supra) is a case under Section 276-C of Income Tax Act, 1961 and not under the provisions of Section 276-CC, therefore, has no application to the facts of the present case. 33. Thus, when facts of the present case are examined in the light of the law laid down by Supreme Court in case of Prakash Nath Khanna and another Vs. Commissioner of Income Tax and another (surpa), then it is evident that use of words in due time is a significant term used in Section 276-CC and relates to non-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 provision for condonation of the said infraction, even if, a return is filed in terms of sub-Sections (4) of Section 139 because due time as prescribed under sub-Section (1) or (2) of Section 139 will not get diluted by filing return under Section 139(4) much later as it is against the legislative intent. 34. 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