SASI ENTERPRISES Vs ASSISTANT COMMISSIONER OF INCOME TAX
Bench: K.S. RADHAKRISHNAN,A.K. SIKRI
Case number: Crl.A. No.-000061-000061 / 2007
Diary number: 32070 / 2006
Advocates: PRANAB KUMAR MULLICK Vs
B. V. BALARAM DAS
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.61 OF 2007
Sasi Enterprises … Appellant
Versus
Assistant Commissioner of Income Tax … Respondent
WITH
CRIMINAL APPEAL NOs.62, 63 & 64 OF 2007
J U D G M E N T
K.S. Radhakrishnan, J.
1. We are concerned with four Criminal Appeals No.61 to
64 of 2007, out of which two Criminal Appeals No.61 of 2007
and 63 of 2007 relate to M/s Sasi Enterprises, a registered
partnership firm, of which Ms. J. Jayalalitha and Mrs. N.
Sasikala are partners, which relate to the assessment years
1991-92 and 1992-93 respectively. Criminal Appeal Nos.62
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and 63 of 2007 relate to J. Jayalalitha and N. Sasikala
respectively for the assessment years 1993-94.
Proceedings giving rise to these appeals originated from the
complaints filed by the Assistant Commissioner of Income
Tax, Chennai, before the Additional Chief Metropolitan
Magistrate (Egmore), Chennai, for the willful and deliberate
failure to file returns for the assessment years 1991-92,
1992-93 and hence committing offences punishable under
Section 276 CC of the Income Tax Act, 1961 (for short “the
Act”). Complaints were filed on 21.8.1997 after getting the
sanction from the Commissioner of Income Tax, Central II,
Chennai under Section 279(1) of the Income Tax Act.
Appellants filed two discharge petitions under Section 245(2)
Cr.P.C., which were dismissed by the Chief Metropolitan
Magistrate vide order dated 14.6.2006. Appellants preferred
Crl. R.C. Nos.781 to 786 of 2006 before the High Court of
Madras which were dismissed by the High Court vide its
common order dated 2.12.2006, which are the subject
matters of these appeals.
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2. M/s Sasikala Enterprises was formed as a partnership
firm by a deed dated 06.02.1989 with N. Sasikala and T.V.
Dinakaran as its partners, which was later reconstituted with
effect from 04.05.1990 with J. Jayalalitha and N. Sasikala as
partners. The firm did the business through two units,
namely, M/s Fax Universal and M/s J.S. Plan Printers, which,
inter alia, included the business in running all kinds of motor
cars, dealing in vehicles and goods etc. In the complaint
E.O.C.C. No.202 of 1997 filed before the Chief Metropolitan
Magistrate, Egmore, M/s Sasi Enterprises was shown as the
first accused (A-1) and J. Jayalalitha and N. Sasikala were
shown as (A-2) and (A-3) respectively, who were stated to be
responsible for the day-to-day business of the firm during
the assessment years in question and were individually,
jointly and severally made responsible and liable for all the
activities of the firm. Partnership deed dated 04.05.1990
itself stated that the partners, A-2 and A-3 are responsible
and empowered to operate bank accounts, have full and
equal rights in the management of the firm in its business
activities, deploy funds for the business of the firm, appoint
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staff, watchman etc. and to represent the firm before income
tax, sales tax and other authorities.
3. M/s Sasi Enterprises, the firm, did not file any returns
for the assessment year 1991-92 and 1992-93, for which the
firm and its partners are being prosecuted under Section 276
CC of the Act. J. Jayalalitha and N. Sasikala did not file
returns for the assessment year 1993-94 and hence they are
being prosecuted for that breach (in their individual
capacity) separately but not for the assessment years 1991-
92 or 1992-93 and their returns have been filed as individual
assessee by them for the assessment years 1991-92 and
1992-93, though belatedly on 20.11.1994 and 23.02.1994
respectively. In those returns it was mentioned that
accounts of the firm had not been finalized and no returns of
the firm had been filed.
4. The Assistant Commissioner of Income Tax in his
complaint stated that the firm through its partners ought to
have filed its returns under Section 139(1) of the Act for the
assessment year 1991-92 on or before 31st August, 1991 and
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for the assessment year 1992-93 on or before 31st August,
1992 and A-2 in her individual capacity also should have
filed her return for the year 1993-94 under Section 139(1) on
or before 31.08.1993 and A-3 also ought to have filed her
return for the assessment year 1993-94 on or before 31st
August, 1993, as per Section 139(1) of the Act. The accused
persons, it was pointed out, did not bother to file the returns
even before the end of the respective assessment years, nor
had they filed any return at the outer statutory limit
prescribed under Section 139(4) of the Act i.e. at the end of
March of the assessment year. It was also pointed out that a
survey was conducted in respect of the firm under Section
133A on 25.08.1992 and following that a notice under
Section 148 was served on the partnership firm on 15.2.1994
to file the return of income tax for the years in question.
Though notice was served on 16.2.1994, no return was filed
within the time granted in the notice. Neither return was
filed, nor particulars of the income were furnished. For the
assessment year 1991-92, it was stated that pre-assessment
notice was served on 18.12.1995, notice under Section
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142(1)(ii) giving opportunities was also issued on
20.07.1995. The department made the best judgment
assessment for the assessment year 1991-92 under Section
144 on a total income of Rs.5,84,860/- on 08.02.1996 and
tax was determined as Rs.3,02,434/- and demand notice for
Rs.9,95,388/- was issued as tax and interest payable on
08.02.1996.
5. For the assessment year 1992-93, the best judgment
assessment under Section 144 was made on 9.2.1996 on the
firm on a total income of Rs.14,87,930/- and tax determined
at Rs.8,08,153/-, a demand notice was issued towards the
tax and interest payable.
6. We may indicate, so far as A-2 is concerned, the due
date for filing of return of income as per Section 139(1) of
the Act for the assessment year 1993-94 was 31.8.1993.
Notice under Section 142(1)(i) was issued to A-2 calling for
return of income on 18.1.1994. The said notice was served
on her on 19.1.1994. Reminders were issued on 10.2.1994,
22.8.1994 and 23.8.1995. No return was filed as required
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under Section 139(4) before 31.3.1995. The Department on
31.7.1995 issued notice under Section 142(1)(ii) calling for
particulars of income and other details for completion of
assessment. Neither the return of income was filed nor the
particulars of income were furnished. Best judgment
assessment under Section 144 was made on 9.2.1996 on a
total income of Rs.1,04,49,153/- and tax determined at
Rs.46,68,676/- and demand of Rs.96,98,801/-, inclusive of
interest at Rs.55,53,882/- was raised after adjusting pre-paid
tax of Rs.5,23,756/-. The Department then issued show-
cause notice for prosecution under Section 276CC on
14.6.1996. Later, sanction for prosecution was accorded by
the Commissioner of Income Tax on 3.10.1996.
7. A-3 also failed to file the return of income as per
Section 139(1) for the assessment year 1993-94 before the
due date i.e. 31.8.1993. Notice under Section 142(1)(i) was
issued to A-3 calling for filing of return of income on
8.11.1995. Further, notice was also issued under Section
142(1)(ii) on 21.7.1995 calling for particulars of income and
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other details for completion of assessment. Neither the
return of income was filed nor the particulars of income were
furnished. Best judgment assessment under Section 144
was made on 8.2.1996 on a total income of Rs.70,28,110/-
and tax determined at Rs.26,86,445/-. The total tax
payable, inclusive of interest due was Rs.71,19,527/-. After
giving effect to the appellate order, the total income was
revised by Rs.19,25,000/-, resulting in tax demand of
Rs.20,23,279/-, inclusive of interest levied. Later, a show-
cause notice for prosecution under Section 276CC was
issued to A-3 on 7.8.1996. A-3 filed replies on 24.11.1996
and 24.3.1997. The Commissioner of Income Tax accorded
sanction for prosecution on 4.8.1997.
8. We may incidentally also point out, the final tax liability
so far as the firm is concerned, was determined as
Rs.32,63,482/- on giving effect to the order of the Income
Tax Appellate Tribunal (B Bench), Chennai dated 1.9.2006
and after giving credit of pre-paid tax for the assessment
year 1991-92. For the assessment year 1992-93 for the
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firm, final tax liability was determined at Rs.52,47,594/- on
giving effect to the order of the Income Tax Appellate
Tribunal (B Bench), Chennai dated 1.9.2006 and after giving
credit of pre-paid tax. So far as A-2 is concerned, for the
assessment year 1993-94 final tax liability was determined
at Rs.12,54,395/- giving effect to the order of Income Tax
Appellate Tribunal (B Bench), Chennai dated 11.10.2008
after giving credit to pre-paid tax. So far as A-3 is
concerned, for the assessment year 1993-94, final tax
liability was determined as Rs.9,81,870/- after giving effect
to the order of Income Tax Appellate Tribunal (B Bench),
Chennai dated 14.9.2004 and after giving credit to pre-paid
tax.
9. We have already indicated, for not filing of returns and
due to non-compliance of the various statutory provisions,
prosecution was initiated under Section 276CC of the Act
against all the accused persons and the complaints were
filed on 21.08.1997 before the Chief Metropolitan Magistrate,
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which the High Court by the impugned order has permitted
to go on.
10. Shri Shekhar Naphade, learned senior counsel
appearing for the appellants, submitted that the High Court
did not appreciate the scope of Section 276CC of the Act.
Learned senior counsel pointed out that once it is
established that on the date of the complaint i.e. on
21.08.1997 the assessment had not attained finality, the
complaint became pre-mature as on the date of the
complaint and no offence had taken place and all the
ingredients of offence under Section 276 of the Act were not
satisfied. Learned senior counsel pointed out that unless
and until it is shown that failure to file the return was willful
or deliberate, no prosecution under Section 276CC could be
initiated. Learned senior counsel pointed out that in fact, the
second accused in her individual return had disclosed that
the firm was doing the business and that it had some income
and hence, it cannot be said that A-2 had concealed the fact
that the firm had any intention to evade tax liability.
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Learned senior counsel also submitted that whether the
assessee had committed any offence or not will depend
upon the final assessment of income and tax liability
determined by the appropriate authority and not on the
assessment made by the assessing officer. Placing reliance
on the proviso to Section 276CC learned senior counsel
submitted that, that is the only interpretation that could be
given to Section 276CC. In support of his contention reliance
was placed on the Judgment of this Court in Commissioner
of Wealth Tax, Gujarat v. Vimlaben Vadilal Mehta
(Smt.) (1983) 4 SCC 692, Commissioner of Wealth Tax,
Gujarat, Ahmedabad v. Vadilal Lallubhai & Ors. (1983)
4 SCC 697 and State of H.P. and others v. Gujarat
Ambuja Cement Ltd. and another (2005) 6 SCC 499.
Referring to Section 278E of the Act, learned senior counsel
submitted that till the assessment does not attain finality,
Section 276CC is not complete and the presumption under
Section 278E is not attracted. Learned senior counsel also
submitted that the High Court has wrongly applied the
principles laid down by this Court in Prakash Nath Khanna
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and another v. Commissioner of Income Tax and
another (2004) 9 SCC 686, in any view, which calls for
reconsideration. Learned senior counsel submitted that the
said Judgment deals with the factum of proviso to Section
276CC of the Act which lays down that there is no offence if
the tax amount does not exceed Rs.3,000/-.
11. Shri Sidharth Luthra, learned Additional Solicitor
General of India, appearing for the Revenue, on the other
hand, submitted that Section 139 of the Act placed a
statutory mandate on every person to file an income tax
return in the prescribed form and in the prescribed manner
before the due date i.e. 31st August of the relevant
assessment year. Learned ASG submitted that on breach of
Section 139(1) of the Act, cause of action to prosecute the
assessee arises subject to other ingredients of Section
276CC of the Act. Learned ASG pointed out that what is
relevant in the proceedings, is not only the due date
prescribed in Section 139(1) of the Act, but also time
prescribed under Section 142 and 148 of the Act, by which
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further opportunities have been given to file the return in the
prescribed time. In other words, Section 276CC, according
to the learned ASG, applies to a situation where assessee
has failed to file the return of income as required under
Section 139 of the Act or in response to notices issued to the
assessee under Section 142 or Section 148 of the Act.
Learned ASG also submitted that the scope of proviso to
Section 276CC to protect the genuine assessees who either
file their return belatedly but within the end of the
assessment year or those who paid substantial amount of
their tax dues by pre-paid taxes. Considerable reliance was
placed on the Judgment of this Court in Prakash Nath
Khanna and another (supra). Reliance was also placed on
the Judgment of this Court in Maya Rani Punj (Smt.) v.
Commissioner of Income Tax, Delhi (1986) 1 SCC 445.
12. Learned ASG also explained the scope of Section 278E
by placing reliance on P.R. Metrani v. Commissioner of
Income Tax, Bangalore (2007) 1 SCC 789, Kumar
Exports v. Sharma Carpets (2009) 2 SCC 513, and
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submitted that pendency of the appellate proceedings is not
a relevant factor in relation to prosecution under Section
276CC. Reference was also made to Ravinder Singh v.
State of Haryana (1975) 3 SCC 742 and Standard
Chartered Bank and others v. Directorate of
Enforcement and others (2006) 4 SCC 278. Learned ASG
submitted that the Judgment in Prakash Nath Khanna
(supra) calls for no reconsideration, as the same has been
uniformly applied by this Court as well as by the various High
Courts. Learned ASG also pointed out that the appellants
have been indulging in litigative exercises by which they
could hold up the proceedings for almost two decades and
that the trial court has rightly rejected the application for
discharge, which was affirmed by the High Court and the
same calls no interference by this Court.
13. We may formulate the questions that arise for our
consideration, which are as under:
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(1) Whether an assessee has the liability/duty to file a
return under Section 139(1) of the Act within the due
date prescribed therein?
(2) What is the effect of best judgment assessment
under Section 144 of the Act and will it nullify the
liability of the assessee to file its return under Section
139(1) of the Act?
(3) Whether non-filing of return under Section 139(1)
of the Act, as well as non-compliance of the time
prescribed under Sections 142 and 148 of the Act are
grounds for invocation of the provisions of Section
276CC of the Act?
(4) Whether the pendency of the appellate
proceedings relating to assessment or non-attaining
finality of the assessment proceedings is a bar in
initiating prosecution proceedings under Section 276CC
due to non-filing of returns?
(5) What is the scope of Section 278E of the Act, and
at what stage the presumption can be drawn by the
Court?
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14. We may, at the outset, point out that the appellants
had earlier approached this Court and filed SLP(C) Nos.3655-
3658 of 2005 which were disposed of by this Court directing
the trial court to dispose of the petition for discharge within
a period of two months by its order dated 03.03.2006.
Learned Chief Metropolitan Magistrate rejected the petitions
vide its order dated 14.06.2006. Though the High Court
affirmed the said order vide its judgment dated 02.12.2006,
these appeals were kept pending before this Court over six
years for one reason or another.
15. We are, in these appeals, concerned with the question
of non-filing of returns by the appellants for the assessment
year 1991-92, 1992-93 and 1993-94. Each and every order
passed by the revenue as well as by the Courts were taken
up before the higher courts, either through appeals,
revisions or writ petitions. The details of the various
proceedings in respect of these appeals are given in
paragraph 30 of the written submissions filed by the
revenue, which reveals the dilatory tactics adopted in these
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cases. Courts, we caution, be guarded against those
persons who prefer to see it as a medium for stalling all legal
processes. We do not propose to delve into those issues
further since at this stage we are concerned with answering
the questions which have been framed by us.
16. Section 139 of the Act prior to 1989-90 and after,
placed a statutory mandate on every person to file an
income tax return in the prescribed form and in the
prescribed manner. The Direct Tax Laws (Amendment) Act,
1987 with effect from 01.04.1989 made various
amendments to the Income Tax Act, by which the assessing
officer has no power to extend the time for filing a return of
income under Section 139(1) and to extend the time for
filing under Section 139(3), a return of loss intended to be
carried forward. The time prescribed for filing a belated
return under Section 139(4) or a revised return under
Section 139(5) was reduced to one year from the end of the
relevant assessment year. The provision of Section 139(2)
stood incorporated in Section 142(1)(i). The notice under
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Section 142(1)(i) to furnish a return of income cannot be
issued in the course of the assessment year itself and need
not give the person concerned a minimum period of 30 days
for furnishing the return. When a return is furnished
pursuant to a notice under Section 142(1)(i), the assessment
may be made under Section 143 without recourse to Section
147. Further, with the deletion of Section 271(1)(a), a
penalty for failure to furnish in due time a return of income
under Section 139(1), is abolished. Levy of punitive interest
under Section 234A made mandatory and the discretion of
the assessing officer to reduce or waive the interest was
taken away. Non-compliance with a notice under Section
142(1)(i) may attract prosecution under Section 276CC.
17. The Income Tax Act, therefore, had stipulated both the
penalty under Section 271(1)(a) and prosecution under
Section 276CC, the former for depriving taxes due to the
exchequer and later for the offence/infraction committed. As
already indicated by the Taxation Laws (Amendment) Act,
1989, penalty provision under Section 271(1)(a) had been
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deleted w.e.f. 01.04.1989 and a provision for levy of
mandatory/compulsory interest under Section 234A of the
Act was introduced. But, legislature has never waived or
relaxed its prosecuting provisions under Section 276CC of
the Act for the infraction or non-furnishing of return of
income.
18. Section 139 of the Act, as it stood at the relevant time,
reads as under:
“139. (1) Every person, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income-tax, shall, on or before the due date, furnish a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed.
Explanation: In this sub-section, “due date” means-
(a) where the assessee is a company, the 30th day of November of the assessment year; (b) where the assessee is a person, other than a company.- (i) in a case where the accounts of the assessee are required under this Act or nay other law to be
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audited, or where the report of any accountant is required to be furnished under section 80HHC or Section 80HHD or in the case of a co-operative society, the 31st day of October of the assessment year: (ii) in a case where the total income referred to in this sub-section includes any income from business or profession, not being a case falling under sub- clause (i), the 31st day of August of the assessment year : (iii) in any other case, the 30th day of June of the assessment year.
xxx xxx xxx
xxx xxx xxx
(3) If any person who has sustained a loss in any previous year under the head “Profits and gains of business or profession” or under the head “Capital gains” and claims that the loss or any part thereof should be carried forward under sub-section (1) of section 72, or sub-section (2) of section 73, or sub- section (1) or sub-section (3) of section 74, or sub- section (3) of section 74A, he may furnish, within the time allowed under sub-section (1), a return of loss in the prescribed form and verified in the prescribed manner and containing such other particulars as may be prescribed, and all the provisions of this Act shall apply as if it were a return under sub-section (1).
(4) Any person who has not furnished a return within the time allowed to him under sub-section (1), or within the time allowed under a notice issued under sub-section (1) of section 142, may
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furnish the return for any previous year at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier:
xxx xxx xxx
xxx xxx xxx”
19. A plain reading of the above provisions indicates that it
is mandatory on the part of the assessee to file the return
before the due date. Explanation (a) to the said section
defines the term “due date”, which is 30th November of the
assessment year. The consequence of non-filing of return on
time has also been stipulated in the Act. Further a reference
to Sections 142 and 148 is also necessary to properly
understand the scope of Section 276CC. Relevant portion of
Section 142, as it stood at the relevant time, is quoted
below:
“142. Inquiry before assessment.- (1) For the purpose of making an assessment under this Act, the Assessing Officer may serve on any person who has made a return under section 139 or in whose case the time allowed under sub- section (1) of that section for furnishing the return has expired] a notice requiring him, on a date to be therein specified,-
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(i) where such person has not made a return within the time allowed under sub-section (1) of section 139, to furnish a return of his income or the income of any other person in respect of which he is assessable under this Act, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed, or
xxx xxx xxx
xxx xxx xxx”
20. Section 148 refers to the issue of notice where income
has escaped assessment. Relevant portion of the same is
also extracted hereinbelow for ready reference:
“148. (1) Before making the assessment, reassessment or recomputation under section 147, the Assessing Officer shall serve on the assessee a notice requiring him to furnish within such period, not being less than thirty days, as may be specified in the notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139.
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(2) The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so.”
21. Sub-section (1) of Section 139, clause (i) sub-section (1)
of Section 142 and Section 148 are mentioned in Section
276CC of the Act. Section 276CC is extracted as under:
“276CC. Failure to furnish returns of income. If a person wilfully fails to furnish in due time 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, 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, exceeds one 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 three 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 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-
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(a) the return is furnished by him before the expiry of the assessment year; or
(b) the tax payable by him on the total income determined on regular assessment, as reduced by the advance tax, if any, paid, and any tax deducted at source, does not exceed three thousand rupees.”
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 (1962) 40 TC 209 is “some
deliberate or intentional failure to do what the tax payer
ought to have done, knowing that to omit to do so was
wrong”. The assessee is bound to file the return under
Section 139(1) of the Act on or before the due date. The
outer limit is fixed for filing of return as 31st August of the
assessment year, over and above, in the present case, not
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only return was not filed within the due date prescribed
under Section 139(1) of the Act, but also the time prescribed
under Section 142 and 148 of the Act and the further
opportunity given to file the return in the prescribed time
was also not availed of.
23. Section 276CC applies to situations where an assessee
has failed to file a return of income as required under
Section 139 of the Act or in response to notices issued to the
assessee under Section 142 or Section 148 of the Act. The
proviso to Section 276CC gives some relief to genuine
assesses. The proviso to Section 276CC gives further time
till the end of the assessment year to furnish return to avoid
prosecution. In other words, even though the due date
would be 31st August of the assessment year as per Section
139(1) of the Act, an assessee gets further seven months’
time to complete and file the return and such a return
though belated, may not attract prosecution of the assessee.
Similarly, the proviso in clause ii(b) to Section 276CC also
provides that if the tax payable determined by regular
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assessment has reduced by advance tax paid and tax
deducted at source does not exceed Rs.3,000/-, such an
assessee shall not be prosecuted for not furnishing the
return under Section 139(1) of the Act. Resultantly, the
proviso under Section 276CC takes care of genuine assesses
who either file the returns belatedly but within the end of the
assessment year or those who have paid substantial
amounts of their tax dues by pre-paid taxes, from the rigor
of the prosecution under Section 276CC of the Act.
24. Section 276CC, it may be noted, takes in sub-section
(1) of Section 139, Section 142(1)(i) and Section 148. But,
the proviso to Section 276CC takes in only sub-section (1) of
Section 139 of the Act and the provisions of Section 142(1)(i)
or 148 are conspicuously absent. Consequently, the benefit
of proviso is available only to voluntary filing of return as
required under Section 139(1) of the Act. In other words, the
proviso would not apply after detection 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.
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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 a best
judgment assessment under Section 144 of the Act and later
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show cause notices were issued for initiating prosecution
under Section 276CC of the Act. Proviso to Section 276CC
nowhere states that the offence under Section 276CC has
not been committed by the categories of assesses who fall
within the scope of that proviso, but it is stated that such a
person shall not be proceeded against. In other words, it
only provides that under specific circumstances subject to
the proviso, prosecution may not be initiated. An assessee
who comes within clause 2(b) to the proviso, no doubt has
also committed the offence under Section 276CC, but is
exempted from prosecution since the tax falls below
Rs.3,000/-. Such an assessee may file belated return before
the detection and avail the benefit of the proviso. Proviso
cannot control the main section, it only confers some benefit
to certain categories of assesses. In short, the offence under
Section 276CC is attracted on failure to comply with the
provisions of Section 139(1) or failure to respond to the
notice issued under Section 142 or Section 148 of the Act
within the time limit specified therein.
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29
27. We may indicate that the above reasoning has the
support of the Judgment of this Court in Prakash Nath
Khanna (supra). When we apply the above principles to the
facts of the case in hand, the contention of the learned
senior counsel for the appellant that there has not been any
willful failure to file their return cannot be accepted and on
facts, offence under Section 276CC of the Act has been
made out in all these appeals and the rejection of the
application for the discharge calls for no interference by this
Court.
28. We also find no basis in the contention of the learned
senior counsel for the appellant that pendency of the
appellate proceedings is a relevant factor for not initiating
prosecution proceedings under Section 276CC of the Act.
Section 276CC contemplates that an offence is committed
on the non-filing of the return and it is totally unrelated to
the pendency of assessment proceedings except for second
part of the offence for determination of the sentence of the
offence, the department may resort to best judgment
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30
assessment or otherwise to past years to determine the
extent of the breach. The language of Section 276CC, in our
view, is clear so also the legislative intention. It is trite law
that as already held by this Court in B. Permanand v.
Mohan Koikal (2011) 4 SCC 266 that “the language
employed in a statute is the determinative factor of the
legislative intent. It is well settled principle of law that a
court cannot read anything into a statutory provision which
is plain and unambiguous”. If it was the intention of the
legislature to hold up the prosecution proceedings till the
assessment proceedings are completed by way of appeal or
otherwise the same would have been provided in Section
276CC itself. Therefore, the contention of the learned senior
counsel for the appellant that no prosecution could be
initiated till the culmination of assessment proceedings,
especially in a case where the appellant had not filed the
return as per Section 139(1) of the Act or following the
notices issued under Section 142 or Section 148 does not
arise.
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31
29. We are also of the view that the declaration or
statement made in the individual returns by partners that
the accounts of the firm are not finalized, hence no return
has been filed by the firm, will not absolve the firm in filing
the ‘statutory return under section 139(1) of the Act. The
firm is independently required to file the return and merely
because there has been a best judgment assessment under
Section 144 would not nullify the liability of the firm to file
the return as per Section 139(1) of the Act. Appellants’
contention that since they had in their individual returns
indicated that the firm’s accounts had not been finalized,
hence no returns were filed, would mean that failure to file
return was not willful, cannot be accepted.
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
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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 from
filing the returns as per Section 139(1) or in response to
notices under Sections 142 and 148 of the Act.
31. We, therefore, find no reason to interfere with the order
passed by the High Court. The appeals, therefore, lack
merits and the same are dismissed and the Criminal Court is
directed to complete the trial within four months from the
date of receipt of this Judgment.
……. ………………………J.
(K.S. Radhakrishnan)
…………………………….J. (A.K. Sikri)
New Delhi, January 30, 2014.