Mens rea is essential for conviction under Section 276CC of the Income Tax Act, and mere delay in filing returns does not constitute willful evasion without intent.

ORDER :

Anoop Kumar Dhand, J.

1. Present appeal has been preferred against the impugned judgment dated 31.08.1991, passed by the Special Magistrate (Economic Offences), Rajasthan, Jaipur by which the accused-respondent therein after referred as ‘the respondent’ has been acquitted of the charge under Section 276 CC of the Income Tax Act, 1961 (for short “the Act of 1961”).

2. Facts in brief of the case are that the Income Tax Officer after getting sanction from the Commissioner of Income Tax submitted a criminal complaint against the respondent under Section 276 CC of the Act and it was alleged that the respondent did not submit his Income Tax Returns under Section 139(1) of the Act of 1961, within the stipulated time on or before 31.07.1978 and the assessee filed his returns on 31.12.1980. Thereafter, proceedings under Section 271(1) of the Act of 1961, were initiated vide notice dated 31.12.1981, but the respondent failed to submit any explanation. Then a reminder was issued but no reply was submitted. Thereafter the Income Tax Officer imposed penalty of Rs.2200/- on the respondent under Section 271(1) of the Act of 1961, vide order dated 10.11.1984.

3. In support of the complaint, the appellant examined PW-1 D.P Govil. Thereafter charges were framed against the respondent under Section 276 CC of the Act of 1961. The accused-respondent denied the charges and claimed trial. Thereafter statements of PW-1 D.P Govil were again recorded with PW-2 H.C Nagpal. Thereafter explanation of the respondent was recorded under Section 313 Cr.P.C. The respondent denied the allegations but no defence evidence was produced. The respondent was acquitted vide judgment dated 31.08.1991.

4. Learned counsel for the appellant submits that the allegation against the respondent was that a delayed income tax return, pertaining to the assessment year 1978-79 was submitted by him after a lapse of more than 28 months and this fact has also been established on the record, by way of leading evidence furnished by the Income Tax Department. Counsel submits that under these circumstances there was no reason or occasion available with the Trial Court to acquit the respondent from the above charges. Counsel submits that under these circumstances interference of this Court is warranted.

5. Per contra, learned respondent opposed the arguments raised by the counsel for the petitioner and submitted that though there was some delay in filing the income tax return but the delay was neither willful nor any intention was there which attracts the principle of ‘mensrea’. Counsel submits that after appreciating the evidence available on the record, a cogent & reasoned judgment has been passed in favour of the respondent by giving him benefit of doubt. Hence under these circumstances interference of this court is not warranted.

6. Heard and considered the submissions made at Bar and perused the material available on the record.

7. The sole case of the prosecution is that the respondent has failed to comply with the provisions contained under Section 139(1) of the Act of 1961 and he has submitted the income tax returns after a delay of 28 months which amounts to an offence under Section 276CC of the Act, 1961. It is relevant to extract the provisions under Sections 139(1) and 276CC of the Act of 1961, hereunder:-

“139. Return of income.—

(1) Every person,—

(a) being a company or a firm]; or

(b) being a person other than a company or a firm, 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.

276CC. Failure to furnish returns of income. If a person wilfully fails to furnish in due time the retur