Crlrc/2922/2017 Of Sada Kesava Reddy v. The Dy Commissioner Income Tax Rep By Spl P.p For Income Tax

IN THE HIGH COURT FOR THE STATE OF TELANGANAAT HYDERABAD " MONDAY, THE THIRTY FIRST DAY OF OCTOBERTWO THOUSAND AND TWENTYTWOTWO THOUSAND AND TWENTYTWO PRESENT THE HONOURABLE DR. JUSTICE G.RADHA RANICRIMINAL REVISION CASE NO: 2922 OF 2017 Between: Sada Kesava Reddy, S/o. Late S. Venkat Reddy,Occ: Business, No. 2-4-51152, Chandulal Bowli,Kukmmaragutta, Tadbund, Secunderabad ...Petitioner/Accused And The Dy Commissioner lncome Tax,Circle - 10 (1), l.T. Towers, Ac guards,Masab Tank, Hyderabad., Rep.by the Special Public Prosecutorfor lncome Tax, Hyderabad ...RespondenUCom plainant Revision filed under Section 397 and 401 of Cr.P.C., aggrieved by theorder made in Criminal Miscellaneous Petition no. 441 of 2017 in C.C. No. 210 of2016, dated 26.10.2017, on the file of the Special Judge for Economic Offences,Hyderabad.order made in Criminal Miscellaneous Petition no. 441 of 2017 in C.C. No. 210 of2016, dated 26.10.2017, on the file of the Special Judge for Economic Offences,Hyderabad. I.A NO: 10F2 017 CRLRCMP. NO:4757 OF 20171 Petition under Section 482 of Cr.P.C., praying that in the circumstancesstated in the affidavit filed in support of the petition, the High Court may bestated in the affidavit filed in support of the petition, the High Court may bepleased to stay all further proceedings including the appearance of the Petitionerin C.C. No. 210 of 2016 on the file of Special Judge for Economic Offences,Hyderabad.in C.C. No. 210 of 2016 on the file of Special Judge for Economic Offences,Hyderabad. For the Petitioner : Sri Ch. Pushyam Kiran, Advocate For the Respondent: Sri B. Narasimha Sarma, The Court made the following: ORDER THI II()N'BLE DR. JUSTICE G. RADH,.I. R1\NI DT.GRR, ICRLRC 2922 2017 CR NTINAL REVISION CASE No.2921t-)F 2t)11 ORDER: l. This [(lrin'ri ]ral Revision Case is filed by the trre:jt ion,:r-accused underSections 397 and 401 of Cr.P.C. for revision of the Orler dated 26.10.2017passed in Crl.M.P No.44l of 2017 in C.C.No.210 of 201ri,rn the file of SpecialJudge for Econon ic Offences Wing cum VIII Additional Iv{etr,cpolitan SessionsJudge, Flydcrabar in dismissing the discharge petiti,orr Frled by him underSection245(l)C.P.C 2. l-he case oi the revision petitioner was that the rt:s rondt:nt filed a privatecomplaint against nim for prosecution for the offence urid:r Ser:tion 27 6CC readwith Section 278I c,f the Income Tax Act, 1961 for norr-iling of retums withrntime for the asses rrrent year 2013-14 as per Section 139 (l) of the Income TaxAct, 1961. ['fhe ]re titioner-accused derived rental incc,nr,: frcm the propertieslet-out to thc var ous tenants. The said fact was shcurr in the statement ofincome filed alon, , rvith returns of income. Ex.D1 woulc stolr the name of thetenant and total re rt received for the period 2012-1?. At ht: tirne of [payment ]ofrent, the tenant h d to deduct the tax and remit the sa-nLr: to the Government.The petitioner-acr used had shown service tax retLtrns c:rrtairting Service [Tax]details. . D..GRR, JCRLRC 2922 2017 2.1. The complainant was examined as PWI and he stated in his examinationin chief that as per the information available, the accused had deposited cash ofRs.20,00,000/- in savings bank account and reported a tumover ofRs.I,22,27 ,37 6/- in its service tax retums. The receipt of interest from his fixeddeposits was Rs.2,88,864/- and income from rents was Rs.58,24,2941-. TheDepartment was in possession of information about Service Tax Retums but notfiled any document to show that the petitioner-accused reported a turnover ofRs.1,22,27,3761-. The complainant had not brought any material on recordgiving details of tumover and nature of turnover to prove that the accused hadany income other than the income which was retumed in the Retura of Incomeand the Service Tax Returns filed by the accused. PWl admitted in his cross-examination, when he was shown the Service Tax Returns filed by the accusedonline before the Service Tax Department, that; "The record shown to him was containingservice tax returns from 01.04.2012 to31.03.2013 in three spells fo,Rs.60,70,440/- in the gross amount wherethe tax payable was Rs.7,55,780/- andService Tax Returns for the financial year2012-13 receipt for Central Service Taxpayment said to be made on line were notbnown to htm as the same were notavailable in his ffice." 2.2. PWl also admitted that as per the returns filed by the accused on20.06.2016, the petitioner-accused claimed for refund of Rs.6,370l-. The copyof income tax retums filed by the accused ot20.06.2016 was marked [as ]Ex.Dl. Dr.GRR, JcRLRC_2922_2017 cRLRC_2922_2017He also admitte, i that even if an assessee failed :.o llle his retums, thedepartment could assess his income and could pass an ())(-pafte order for hisincome. PW I als r admitted that the sanction order had b,r:.en issued not takinginto account the r, ttrm filed by the accused wherein as l)€r i.he retum of income,there was a refun, t of Rs.6,370/- and hence proviso (b) c1'Section 276-CC wassquarely applicat le and the accused was not liable [.o ]be prosecuted andcontended that thr c'omplainant failed to ascertain the inttrtmation before filingthe complaint an I mechanically issued sanction ordcr l:lx.I)3 and hled thecomplaint. 2.3. He lirrther contended that the procedure for ser"zice of notice undersection 282 of ln' one Tax Act was not followed and it <:r.rulcl not be said thatthe seruice of noti, e was a valid service and prayed for htis clischarge. 3. The ::esponr ent/complainant filed counter contendirri:l that the petitioner-accused had not iled his retum of income for the assr:l;,;ment year 2013-14 within the tirne, though he had the following income/receipts/in zestments/expenses during the relevarLt pr:rio,1: A1Deposit of Cash in Savings Bank]ls.20,00,000/-]ls.20,00,000/- b)Turnover from services reported in SerticeTax returns Rs.I ,22,27,376/-Tax returns Rs.I ,22,27,376/- c)lnterest as per TDS return - Rs.2,88,864/.d)l?eceipt ofrent as per TDS return-Rs.58,24,294/-d)l?eceipt ofrent as per TDS return-Rs.58,24,294/- OLGRR, !cRLRC_2922_2017 cRLRC_2922_20173.1. He further contended that sub-Section (1) of Section 139 of the Act,would provide inter-alia that every person being a company or a firm; or being aperson other than a company or a frrm, if his total income exceeded themaximum amount which was not chargeable to the income tax, should on orbefore the due daterfumish a retum of income in the prescribed form. In termsof Explanation 2 to sub-section (l) of Section 139 of the Act, the due datewould mean, where an assessee was an individual or HUF, generally the 3lstday of July of [the ]Assessment Year was the due date. The maximum amountwhich was not chargeable to income tax during the period relevant toAssessment Year 2013-14 was Rs.2,00,000/-. Accordingly, the accused wasrequired to file the retum of income for the Assessment Year 2013-14 on orbefore 3lst July, 2013. The Accused willfully failed to file the return of incomein due time under sub-section (1) of Section 139 of the Act and therebycommitted an offence punishable under Section 276CC of the Act. FurtherSection 278E of the Act would state that culpable mental state on the part of theaccused should be presumed for any offence committed under the Act. A showcause notice dated, 02.06.2016 was issued and served on the accused on08.06.2016. Having received the show cause notice, the accused neitherappeared on the date of hearing nor given any written submissions to the showcause notice for default of non-filing of his return of income for the AssessmentYear 2013-14. Dr.GRR, JCRLRC 2922 2017 Dr.GRR, JCRLRC 2922 2017 3.2. He fufther conlended [that ][as ][per ][the provisions ][un(ier Section ][139(a) ][of]the Income ['fax ][, ]r.ct, 1961, [the ][assessee ][should have ][f.lerl his retum ][of ][income]on or before 31.(1.2015 [for ][the relevant ][Assessment ][)ltar ][20 ][13-14. ][However,]the assessee had rot filed [his retum ][of ][income ][either ][ott ][tr ][belbre ][3 ][1 ][.07.201 ][3 ][as]prescribed under liection 139(1) of the [Income ][Tar ][1\ct ][or ][on ][or ][before]31.03.2015 as [pr ]['scribed ][under Section ][139(4) ][of ][the ][Inr:'lrne ][Tax ][Act' ][but filed]only on 20.06.21 15. Hence, [the return ][of ][income ][filt ][rl ][by ][the ][assessee ][was]invalid and couk [rLot ]be acted [upon ][and ][any ][claim ][o1'the ][accused ][for ][refund ][or]brought-forrvard iosses had to be [ignored. ][Hence, ][the ][t(,rtl.ention ][of ][the ][accused]that the retum of income filed [Sould ][be ][assessed ][by ][th,: ][I.rriscictional ][Assessing]Officer and thr same was not [brought ][to ][the ][noltce ][of ][the ][Principal]Comnrissioner [r. ]ar; ttot tenable [as ][the ][satne ][was ][filt:c ][lreyond ][the ][due ][dates]including the cx.e.rded period. [He ][denied ][that the ][sart,:t.ion ][order was ][issued]mechanically. t e further contended [that, the notice ][rvi.t; served ][on ][the ][wife ][of]the accuseC by .he [Notice ]Server of [the ][Department ][who ][was authorized to]serve the notice zLncl the same [was ][duly ][entered ][in ][t]rt ][r:oti,:e ][service ][register.]Hence, the setvi re of notice [was indeed a ][valid ][service ][it'r ][per the ][provisions ][of]the Income Tax \ct and [prayed ]to [dismiss ][the ][petition] 4 " on hearir g both the learned [counsel ][for ][the ][p'e ][.it ][ionr:r-accused ][and ][the]Special Public [)r.osecutor ]for [the ][complainant, ][the ][tr ][ial ][c,rurt ][dismissed ][the]petition reiying upol the [judgment ]of [the ][Hon'ble lrtr(:i: ][Crurt ][in ][the ][case ][of] Dr.GRR,lCRLRC 2922 2017 Prakash Nath Khanna and Another v. Commissioner of Incomd Tax and Another [l, ]where in it was held that: " Infractions covered by under Section 276-CCbeing related to non-furnishing of return withintime in terms of sub-section (l) /sub-section (2)of Section lj9 there could not be anycondonation of infraction even if return wasfiled [in ][terms ][of ][sub-section ][(4) ][ofSection ][139".] 4.1. On the contention of the petitioner-accused that PWl admined in his cross-examination that if the department held that the assessee was entitled forrefund of tax, the return filed by the assessee would be a valid retum, the trialcourt observed that the complainant departmerrt did not hold that the accusedcourt observed that the complainant departmerrt did not hold that the accusedwas entitled for refund of tax and the same could not be decided at that stage.With regard to the validity of the service of notice, the trial court observed thatit was a mixed question of law and fact which could be decided only after trialand that the petitioner was not entitled for discharge on the said ground.With regard to the validity of the service of notice, the trial court observed thatit was a mixed question of law and fact which could be decided only after trialand that the petitioner was not entitled for discharge on the said ground. 5. Aggrieved by the said order of dismissal of discharge petition filed byhim, the petitioner-accused preferred this revision contending that the trialcourt failed to appreciate that neither the complaint nor the sanction order wouldshow computation as to determination of income of the petitioner viz., theincome assessed, tax thereon, interest thereon and the demand payable by thepetitioner, in the absence of which the petitioner could not be put to suffer therigours of criminal trial for the alleged offence under Section 27 6-CC of the n , Dr.GRR, l.RLRC 2922 2017 5. Aggrieved by the said order of dismissal of discharge petition filed byhim, the petitioner-accused preferred this revision contending that the trialcourt failed to appreciate that neither the complaint nor the sanction order wouldshow computation as to determination of income of the petitioner viz., theincome assessed, tax thereon, interest thereon and the demand payable by thepetitioner, in the absence of which the petitioner could not be put to suffer therigours of criminal trial for the alleged offence under Section 27 6-CC of the n , Dr.GRR, l.RLRC 2922 2017 Act. The trial co rr: failed to appreciate that Sectitrn 27,i-t:.C of the [Act ][could]not be made appl cable without determination of quanturrr of [r.ax ]if any evadedby the petitioner. The trial court erred in not apprer:itting the fact that thesanction ordcr dar xt,02.06.2016 passed under Section [,179' ][(1) ]of [the ][Act ][by ][the]Principal Con'rmir sioner of Income Tax was vitiatcd fi;r l,rck of application ofmind. The Trial [( ]loun failed to appreciate that the petiticrLr,:r filed the returns on20.06.2016 and tl e sanction order for initiating criminal :t cse;ution against thepetitioner was pa: sed on 24. 10.2016 rvhich would show t rat there was sufficienttime with the res rondent to pass an assessment order. I lence, the inevitableconclusion rvhicl <:ould be drawn from it was that th: respondent was pre-determined to r rulct the petitioner with criminai liability without evendetermining the tr x liability of the petitioner. 5.1. He furlher contended that the trial court failed to ir1;prr:ciate that even ifthe petitioncr di I not file retums for the Assessme:r1 [-tlear ]20i3-14 before01.07.2013, the r:spondent had arnple power to issue ror.ice:; and even pass abest [judgment ]arsessment which the respondent did nrt do. The trial courtfailed to apprec ate that the petitioner at no point o[ tinre was given anopportunity to r ,but the evidence fited by the respcrr,J::nt in respect of itstumover allcgedl u lrom provisions of services in a duly [,1,)nslituted ]assessmentproceedings. ['l'l ]e trial court ought to have applecizLtt:rl that the punishmentunder the decle :ation was linked to the tax eva<le <[:ln the absence of D..GRR, J .RLRC-2922_2077 determination of tax, the question of launching of prosecution would not arise.The trial court failed to appreciate that the case of the petitioner was squarelycovered under the proviso (b) of 276-CC of the Act. The trial court failed toThe trial court failed to appreciate that the case of the petitioner was squarelycovered under the proviso (b) of 276-CC of the Act. The trial court failed toappreciate that service of notice was not in accordance with the provisionscontained in Section 282 of the Act, consequently there was no proper serviceand the trial court committed error in not appreciating the judgment rendered bythe Hon'ble Apex Court in the case of K.T.M.S. Mohd. and another v. Unionof India2 anci prayed to set aside the order dated 26.10.2017 passed inCrl.M.P.No.44l of 2017 in C.C.No.210 of 2016 on the file of Special Judge forEconomic Offence Court Cum VIII Additional Metropolitan Sessions Judge,Hyderabad and consequently to discharge the petitioner from the allegedcontravention.of India2 anci prayed to set aside the order dated 26.10.2017 passed inCrl.M.P.No.44l of 2017 in C.C.No.210 of 2016 on the file of Special Judge forEconomic Offence Court Cum VIII Additional Metropolitan Sessions Judge,Hyderabad and consequently to discharge the petitioner from the allegedcontravention. 6. Heard the learned Senior Counsel Sri S. Ravi for the Petitioner and theIearned Standing Counsel Sri. B. Narasimha Sharma for Income TaxDepartment. 6. Heard the learned Senior Counsel Sri S. Ravi for the Petitioner and theIearned Standing Counsel Sri. B. Narasimha Sharma for Income TaxDepartment. 7. The leamed Senior Counsel for the petitioner leamed Senior Counsel for the petitioner for the petitioner the petitioner petitioner contended that the casecasewould fall under the second proviso of Section 276-CC of lncome Tax Act.The punishment under the declaration was linked to tax evaded, in the absenceof determination of tax; the question of launching of prosecution would notarise, the petitioner was claiming refund in the present case, the complaint was The leamed Senior Counsel for the petitioner leamed Senior Counsel for the petitioner for the petitioner the petitioner petitioner contended that the casecase i-';r'. s ,/ Dt.GRR, !cRLRC_2922_2017 pre-mature i'.rld th )r,l was no discovery by the departmerrt r,ith regard to evasionof tax by the peti .ioner-accused and relied upon the jr_Lder.rents of the Hon'bleApex Court in I..'t.M.S. Mohd. and Another v. tU'rion of India3, SasiEnterprises v. A ssistant Commissioner of Income Ta:ta and of The HighCourt of Madhy: f'radesh (lndore Bench) in Ramesl.y:rr prasad Sunderlaland Others r'. Un on of India (UOI)s . 8. The lcarnec Standing Counsel for the Income'lzu: I)epartment stronglysupported thc judl ;nrent of the trial court and conte nde,d that the same was inaccordance [q'ith ]I u which did not need to be interfert:d vrith and relied uponthe judgment of .he Hon'ble Apex Court in prakash l{ath Khanna andAnother v. [(-onr ]n issioncr of Income Tax and Another il supra). 9. Now the po nl for consideration is whether the ord:r of the trial court inCrl.M.P.No.44l o :t017 in C.C.No.210 of 2016 is in acc.rdance wirh law orneeds any interfere r<,e by this Court. 10. To consider the rssue on hand, it is necessary to *xtract Section 139 and also Section 276-C: of the Income Tax Act, 1961. 1'hey r-.ad ar; follows: "Section |.39 oJ the Income Tar reads os under: '1,' - Everyt person, shall furnish a return oI hi,;rtcome during lhe previous year, on or he.fottlu due date in the prescribed.form an,l vt,rif tdrtcome during lhe previous year, on or he.fottlu due date in the prescribed.form an,l vt,rif td t alR ltllz; sc lslralR ltllz; sc lslr o zol4 1z; n r,t 1{:.r-y tez 1a r.1 '1zoot; [zor ]ttn rz rlret Dr.GRR, JCRLRC 2922 2017 in the prescribed manner and setting forth suchother pdrticulars as may be prescribed: a) Being a company [or afirmJ; b) Being a person other than a company [or afirml, d [his total ][income ][assessable ][under]this Act during the previous year exceededthe maximum dmount which is notchargeable to income tdx,Shall on or before the due date, furnish areturn of his income or the income of suchother person during the previous year, in theprescribe form and verified in the prescribedmarurcr and setting forth such otherparticulars as may be prescribed.firml, d [his total ][income ][assessable ][under]this Act during the previous year exceededthe maximum dmount which is notchargeable to income tdx,Shall on or before the due date, furnish areturn of his income or the income of suchother person during the previous year, in theprescribe form and verified in the prescribedmarurcr and setting forth such otherparticulars as may be prescribed. (2) ... o) (4) Any person who has not furnished d returnwithin the time allowed to him under sub-section(l), or within the time allowed under a noticeissued under sub-section (1) of Section 142, mayfurnish [the ][return ]for [any ][previous ][year ]at anytime, before the expiry of one year from the endof the relevant assessment year or before thecompletion of the assessment, whichever isearlier". 11. Section 139 of the IT Act places a statutory mandate on every person to (2) ... o) (4) Any person who has not furnished d returnwithin the time allowed to him under sub-section(l), or within the time allowed under a noticeissued under sub-section (1) of Section 142, mayfurnish [the ][return ]for [any ][previous ][year ]at anytime, before the expiry of one year from the endof the relevant assessment year or before thecompletion of the assessment, whichever isearlier". 11. Section 139 of the IT Act places a statutory mandate on every person to file the Income Tax returns in a prescribed form and in a prescribed mannersubject to the provisions thereunder. The reading ofthe above provisions wouldindicate that it is mandatory on the part of the assessee to file the return beforethe due date. Explanation (a) to the said section would define the term ',duedate" as 3lst day of July of the assessment year. Thus, the petitioner-accusedwas required to file the return of income for the assessment year 2013-14 on orbefore 31st day ofJuly, 2013. .t I ,:f the IT Act, 1961 reads as under.' 12. Section 276C, '276CC, if a person wilfulllt fails to furn h indue lime " (the return of fringe benefits which lrcis required to furnish under sub-section (,) offlection ll5WD or by notice given unde, sub-section (2) of the said section or Sectron I lllt,H(,r the return of the income which he is re,7t, i,edtt Jurnish under sub-section (l) of Section ,,.:t9(.'r by notice given under [clause (i) o.,t' su,\-section (l) of Section l42J or Section 1,r8 lorlccrion l53Al, he shall be punishable. I't tL case where the amount of tm, which tv tu.ldhave been evaded if the failure has. nol utt,::na'iscovered, exceeds (rwenty five) huntlr,::dt,'tousand rupees, with rigorous imprisonr rc,ttJor [a ][term which ][shall ]not be les,r thun sixntonths but which may extent to seven years cu.,dv'ith a rtne,' i) Iit any other case, wilh impri.tonment for u let,nv,hich shall not be less than three montJ$ bfitl,hich may extend to two years and withfne," Provided that a person shall not be proceeclttdagainst under this section for failure to -fitr t,hin due lime the (return of fringe benefits, tu rLl,:rsitb-section (l) of Section tl5llD orl rehtrt :tfittcome under sub-section (1) ofSection 139-For any osscssmenl year commencing prio. [,o]tl,e Firsr day of April l9z5: or 1i) i.) i, For any ossessment ycar commenctng on t.ra"rter the l'irst day o-f April 1975, if- a)The return is Jurnished by him before the t,.r,tit.yorr the assessment yeot, or b)The tax payable by him on the total tnconedetermined on regular assessment, as re(lhceCb't the advance tax, tf any, paid ond any lc,.rdeducted al source, does not exceed tlreetL,ousand rupees.determined on regular assessment, as re(lhceCb't the advance tax, tf any, paid ond any lc,.rdeducted al source, does not exceed tlreetL,ousand rupees. 13. The Hon'ble A.pex court in sasi Enterprises v. Assistant commissioner of Income Tax (4 ;upra) while referring to Section 276C:C, held that: "Seclion 276CC applies to siluations whe,.e analsessee has failed to file a return of incone esrequired under Section 139of the Act or inalsessee has failed to file a return of incone esrequired under Section 139of the Act or inresponse to notices issued to lhe ass,zsszrtunder Section 142 or Section 148 of thc Act '.",\rtoroviso to Section 276CC gives some reliq t)oroviso to Section 276CC gives some reliq t) / i 13. The Hon'ble A.pex court in sasi Enterprises v. Assistant commissioner of Income Tax (4 ;upra) while referring to Section 276C:C, held that: "Seclion 276CC applies to siluations whe,.e analsessee has failed to file a return of incone esrequired under Section 139of the Act or inalsessee has failed to file a return of incone esrequired under Section 139of the Act or inresponse to notices issued to lhe ass,zsszrtunder Section 142 or Section 148 of thc Act '.",\rtoroviso to Section 276CC gives some reliq t)oroviso to Section 276CC gives some reliq t) / i genuine ds.sesses. The proviso to Section276CC gives further lime till the end of thedssessment year lo furnish return to avoidprosecution. In other words, even though thedue date would be 3 I st August of the assessmentyear as per Section 139(1) of the Act, dndssessee gets further seven months' time tocomplete and file the return and such a returnthough belated, moy not dttract prosecution ofthe assessee. Similarly, the proviso in clauseiiQ) to Section 276CC also provides that if thelax payable determined by regular assessntenthas reduced by advance tax paid and taxdeducted at source does not exceed Rs.3,000/-,such an assessee shall not be prosecuted for notfurnishing [the ][return ][under ][Section 139(1) of ][the]Act. Resultantly, the proviso under Section276CC takes care of genuine assesses whoeither file the returns belatedly but within theend of the assessment year or lhose who havepaid substantial amounts of their tax dues bypre-paid taxes, from the rigor of the prosecutionunder Section 276CC of the Act". "Consequently, the benefit of proviso isavailable only to voluntary filing of return asrequired under Section 139(1)of the Act. Inother words, the proviso would not dpply afterrequired under Section 139(1)of the Act. Inother words, the proviso would not dpply afterdetection of the failure to Jile the return andarter a notice under Section 142(1)(, or 148 ofthe Act is issued callingfor filing of the return ofincome. Proyiso, therefore, envisages the filingof even belated return before the detection orincome. Proyiso, therefore, envisages the filingof even belated return before the detection ordiscovery of the failure and issuance of noticesunder Section 142 or 148 of the Act". 14. Consequently, the Hon'ble Apex Court further held that: "Proviso to Section 276CC nowhere states thdtthe offence under Section 276CC has not beencommitted by the categories of assesses who fallwithin the scope of that proviso, but it is slatedthat such a person shall not be proceededagainst. ln other words, it only provides thatunder specifi.c circumsldnces subject to theproviso, prosecution may not be initiated. Anassessee who comes within clause 2(b) to theproviso, no doubt has also committed the ofenceunder Section 276CC, but is exempted from DT.GRR, JCRLRC 2922 2017 pros'eculk)n since the t(Lr falls below Rs.3,/-)('(), -.Suclt an assessee may file belated relurn be,1u edrc delectktrt and avail the benefit of the pr,'.\i;t.Frovis} cLtnrutl control thc main sccli m, i, ,t,t,ySuclt an assessee may file belated relurn be,1u edrc delectktrt and avail the benefit of the pr,'.\i;t.Frovis} cLtnrutl control thc main sccli m, i, ,t,t,ycorqfers sone benefit to cerlain calegorie:' ')far.r€sses. ln short, the ofence nder,9ec\on2 [76CC ]is allracted on failure to comply with thep"ot'isiotts ofSection 139(l) or Jailurc iorespond lo lhe notice issued under Scc'ic'nI 12 or Se ction 148 of the Act within the r ine2 [76CC ]is allracted on failure to comply with thep"ot'isiotts ofSection 139(l) or Jailurc iorespond lo lhe notice issued under Scc'ic'nI 12 or Se ction 148 of the Act within the r inel imit spec iJic d rhere in [".] 15. As seen fror r the facts of this case, the petitioner-irc c lrsec failed to file the 15. As seen fror r the facts of this case, the petitioner-irc c lrsec failed to file the retum of income f rr the assessment year 2013-14 or) or b rfi)re 3 l st day of July,2013 or within the time limit prescribed under Secti()n 1il') ii4) before the expiryof the due date .e31.03.20i5 due to which a sh,:rrr cause notice dated02.06.2016 was is iued to ltim and it was ser-ved on the vriib of the accused on08.06.2016. ['fhe ]1 [etitioner-accused ][filed ][the ][retums ][on ][.1.(t.()6.2016 ][well ][beyond]the due date ir.rcluc ing the extended period 16" The content on of the learned counsel for the petit onersr was that as perProviso (ii)(b) of Section 276CC of lncome Tax r\ct, 19tri1, unless a regularassessment was m rc,e and the total income was deterfiri te d and after any taxdeducted at source atrd advance tax paid if any was redur:ec. end the same wouldnot exceed Rs.30( 0l-, the assesse would be exempteci i.r:rm prosecution andrelied upon the juc grnent of the High Court of Madhya I)radesh in RameshwarPrasad Sunderlal and Others v. Union of India (UCIIrr5 supra) wherein itwas held that "According to the [proviso ](ii) (b) o[ Se.:t rtr 2i6CC of the IT Act, 1961, a person ;hall, t'ti be proceeded against under this section forfailure [to ]furnish [in ][due ][time ]the return offailure [to ]furnish [in ][due ][time ]the return ofitrcome under Sub-Section (l) of Section 139, ifthe tax payable by him on the total incomedetermined on regular assessmcnt, as reducedby the advance tax, { any, paid, and any taxdetermined on regular assessmcnt, as reducedby the advance tax, { any, paid, and any taxdeducted dt sotrce, does not. exceed threethousand rupees. The prosecution has not laidany evidence to show that the case did not fatlany evidence to show that the case did not fatlunder lhis proviso. The learned irial court hasheld in Para l5 of its judgment dated11..03.1998 thqt tax was insuficient andheld in Para l5 of its judgment dated11..03.1998 thqt tax was insuficient andremaining t&t was deposited with the returnwhich was filed delayed, therefore, it cannol besaid lhat intention of the applicants was not towhich was filed delayed, therefore, it cannol besaid lhat intention of the applicants was not tocause delay. According to the learned trialcourt, if the entire tar had been depositedearlier and then the retunl had beenfiled after adelay then it could have been inferred thatapplicants did not intend to cause delay But thelearned trial court did not consider theaforementioned proviso and did not consider thefact [whether ][the ][tar ][payable ]by the applicantson the totdl income delermined on regulardssessment, as reduced by the advance tax paidearlier and then the retunl had beenfiled after adelay then it could have been inferred thatapplicants did not intend to cause delay But thelearned trial court did not consider theaforementioned proviso and did not consider thefact [whether ][the ][tar ][payable ]by the applicantson the totdl income delermined on regulardssessment, as reduced by the advance tax paidby them exceeded Rs.3,000/- or not. In case, itdoes not exceed Rs3,000/- the applicants couldhave not been proceeded agdinst under Section276CC ofthe IT Act".have not been proceeded agdinst under Section276CC ofthe IT Act". 17. But, the Hon'ble Apex Court in Sasi Enterprises Commissioner of Income Tax (4 supra) case itself held that: Dr.GRR, tcRLRC-29D_)017 vAssistant "Section 276CC contempldtes that an oflence iscommitted on the non-filing of the return and itis totally unrelated to the pendency ofass es s ment procee di ngs ". 18. The Hon'ble Apex Court also considered its judgment in prakash Nath Khanna and Another v. Commissioner of Income Tax and Another (lsupra) and observed that the above reasons have the support of the saidjudgment and held that: I Dt.GRR, JCRLRC 2922 2017 17. But, the Hon'ble Apex Court in Sasi Enterprises Commissioner of Income Tax (4 supra) case itself held that: Dr.GRR, tcRLRC-29D_)017 vAssistant "Section 276CC contempldtes that an oflence iscommitted on the non-filing of the return and itis totally unrelated to the pendency ofass es s ment procee di ngs ". 18. The Hon'ble Apex Court also considered its judgment in prakash Nath Khanna and Another v. Commissioner of Income Tax and Another (lsupra) and observed that the above reasons have the support of the saidjudgment and held that: I Dt.GRR, JCRLRC 2922 2017 " llhen y,e apply the dbove principles to tlu I l:iso/'tlrc case in hand, the contention of the let redSenior Counsel for the appellant thot tht,re lt,snot been any willful failure to file their rettt.nc,trutot be accepled and onfucts, oJfe nce ',t dt.rS::ction 276CC of the Act has been made ot. t [:n]atl lhese appeals and the rejectit,n of tlrca,oplication for the discharge calls for anyinterkrence by this C'ourt ". 19. Thus, the c )ntetltions of the learned counsel for trr: petitioner, whether the accused was e rtitled for refund of tax and whether r.her,: was willful failureto fumish thc retur n in due time and rvhether the servicc of notice on the wife ofthe accused is vali I [()r ]not has to be decided only afler lirl - l'ledl3ed trial. Hence,this court does nr t find any illegatity or impropriety ir rtL,:: firding of the trialcourt in dismissinl tJre discharge petition filed by the pel it i,t rer..accused. 20. In the resu.., the Criminal Revision Case is disnrir,,sec confirming theorder of the trial cr,utt as the same calls no interference bv 1l.is Court. 21. Miscellaneo rs petitions pending, if any, shall staurl :lrrserl. Sd/- IVI. MANJULA]E PU Y.EEGtqTMR)SEcTId^l;'.tt'i*1 //TRUE COPY// To, 2 1 . One CC The Spec tc tl Slri Judge C6. pushyam for Economic Offences, Xlran, eAvoc-a-t'eloprud. at Hydera t,ird[.]3. one CC tc S-i B Narasirin, sirrn",'njJ"".lji",idpYut,f4. Two CD C rpres DL ?+t4. HIGH COUR'Dr. GRR,JDATED:3111C'2022 ORDER.a.. ,. ' \-',::,..,"\CRLRC.No.25 212 of 2017jItt ['']t,_Ll:-.-1 :i 1, I(,t'JI 4R\ntrlnu REV1S1ON CA iE lS DtSM,SSED (Dl*,..-tr-\'\:3 '