2023 (12) TMI 62

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....offence punishable under Section 276CC of the Income Tax Act, 1961. 2. The respondent filed complaint for the offence punishable under Section 276CC of the Income Tax Act for non filing of income tax return for the assessment year 2013-2014. The crux of the complaint is that the accused is an assessee within the jurisdiction of the respondent. During the course of proceedings for assessment, the respondent detected that the petitioner failed to file his return of income for the assessment year 2013-2014. As per Section 139(1) of Income Tax Act, the petitioner ought to have filed return of income on or before 30.09.2013. It was also noticed that during the said period, the petitioner had earned income as detailed under: (i) TDS R....

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.... hand, there is a refund of Rs. 460/- claimed by the petitioner. The respondent initiated prosecution even before completion of assessment and it is premature. The income of the petitioner has not exceeded the amount as required under the Act which could be assessed to tax and as such, the prosecution initiated by the respondent is not maintainable. 4. The learned Special Public Prosecutor for Income Tax, appearing for the respondent, submitted that admittedly the petitioner failed to file his income of returns for the assessment year 2013-2014. Even after issuance of notice under Section 276 CC of Income Tax Act, the petitioner did not come forward to file his return of income. Therefore, the respondent rightly initiated prosecution as ....

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.... 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 Sec....

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.... "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 dep....

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....ble mental state on the part of the accused, the court shall presume existence of such mental state and it shall be a defence for the accused to prove the fact that he had no mental state with respect to the act charged as an offence in that prosecution. Therefore, if at all any defence available to the petitioner, he can be disprove the case of the prosecution only before the trial court during the trial. 5. Heard, Mr.P.Ramesh Kumar, the learned counsel appearing for the petitioner and Mr.L.Murali Krishnan, the learned Special Public Prosecutor for Income Tax appearing for the respondent. 6. On perusal of the records, revealed that admittedly the petitioner failed to file his return of income for the assessment year 2013-2014. Theref....

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....ss 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 income under subsection (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; or (b) the tax payable by him on the total income determined on regular....