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TMI Blog2025 (2) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... , the same does not exonerate the petitioner from being prosecuted as provided under Chapter 22 of the Act of 1961. The explanation sought to be offered on behalf of the petitioner before this Court cannot be accepted and it is for the petitioner to lead evidence and produce necessary material before the learned Magistrate in support of his defence and rebutt the presumption available against him under Section 278E of the Act. In the case of C.P Yogeshwara [2017 (1) TMI 1792 - KARNATAKA HIGH COURT]this Court had quashed the proceedings initiated against the assessee for offence punishable under Section 276CC of Act of 1961, for the reason that the assessee had filed his returns as on the date of order of sanction by the Competent Authority which had gone unnoticed. Therefore the Department had erred in initiating proceedings. In the said case, this Court has not taken notice of the presumption that was available under section 278E of the Act and therefore the order passed cannot be of any assistance to the petitioners, more so in view of the judgment of the Hon'ble Supreme Court in the case of Sasi Enterprises. [2014 (2) TMI 19 - SUPREME COURT] Thus the petitions lack merit an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers had died during the relevant period. In support of his arguments, he has placed reliance on the judgment of this Court in the case of C.P Yogeshwara Vs the Income Tax Department (Crl.P.No.1998/2016 disposed of on 04.01.2017). Accordingly, he prays to allow the petition. 6. Per contra, learned counsel appearing for the respondent has opposed the petition. He submits that undisputedly there was a delay in filing the income tax returns for the period from 2012-13 to 2015-16. Merely for the reason that, the petitioner had submitted the income tax returns, it will not exonerate him from criminal prosecution. There is a presumption against the petitioner available under section 278E of the Income Tax act which is required to be rebutted by the petitioner in accordance with law before the learned Magistrate. Therefore, there is no illegality or irregularity in the impugned criminal proceedings. In support of his arguments, he has placed reliance on the judgments of the Hon'ble Supreme Court in the case of Sasi Enterprises vs. Assistant Commissioner of Income Tax (2014) 361 ITR 163 (SC) and also in the case of V.P.Punj vs. Assistant Commissioner of Income Tax and Another reported in ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me which he is required to furnish under sub-section (1) of section 139 or by notice given under [clause (1) of subsection (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 discovered*5, exceeds #6[twenty-five] hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine; (ii) in any other case, with imprisonment for a term which shall not be less than three months but which may extend to [two] years and with fine: Provided that a person shall not be proceeded against under this section for failure to furnish in due time the [return of fringe benefits under sub-section (1) of section 115WD or] return of income under sub-section (1) of section 139- (i) for any assessment year commencing prior to the 1st day of April, 1975; or (ii) for any assessment year commencing on or after the 1st day of April, 1975, if- (a) the return is furnished by him before the expiry of the assessment year 88a [or a return is furnished by him under sub-section (8A) of section 139 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng sanction as provided under Section 279 (1) of the Act of 1961 had issued Show Cause Notice to the petitioner-assessee granting an opportunity to file his objection and there after objections filed by the petitioner were considered and disposed of by a Speaking Order. Therefore, there is no merit in the contentions urged on behalf of the petitioner that he was not heard by the Competent Authority before issuing the sanction order to prosecute him for alleged offence. 12. The Hon'ble Supreme Court in the case of Sasi Enterprises at Para No.30 has observed as follows: "30. Section 278E deals with the presumption as to culpable mental state, which was inserted by the Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1986. The question is on whom the burden lies, either on the prosecution or the assessee, under Section 278E to prove whether the assessee has or has not committed willful default in filing the returns. Court in a prosecution of offence, like Section 276CC has to presume the existence of mens rea and it is for the accused to prove the contrary and that too beyond reasonable doubt. Resultantly, the appellants have to prove the circumstances which prevented them ..... X X X X Extracts X X X X X X X X Extracts X X X X
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