TaxTMI 
TaxTMI 
2014 (2) TMI 19
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....2, 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. 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 Magis....
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.... 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 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) o....
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.... assessment year 1992-93 for the 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, 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 ....
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....ng 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 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....
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....proached 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 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 ....
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....al 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 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 subclause (i), the 31st day of August of the assessment year : (iii) in any other case, the 30th day of June of ....
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....d, 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. (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 extra....
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....bed 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 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 assessme....
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...., 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. 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 appe....