The main legal point established in the judgment is that the issuance of a notice under Section 148 of the Income Tax Act and subsequently filing the returns within the time prescribed does not exonerate the petitioner from prosecution under Section 276CC for not filing the returns within the statutory due date as per Section 139(1) of the Act.

1. The revision petitioner in all these three cases is one and the same. A complaint was filed against the petitioner in these three cases for not filing the income tax returns before the statutory due date as per Section 139(1) of the Income Tax Act (hereinafter referred to as the Act) and thereby liable under Section 276CC of the Act, 1961.

2. In E.O.C.C.No.95 of 2005, a complaint was filed for not filing the returns before the statutory due date i.e., on 31.08.1996 but filed only on 24.03.1999 with a delay of 2 years and 7 months; in E.O.C.C.No.96 of 2005, a complaint was filed for not filing the returns before the statutory due date i.e., on 31.10.1997 but filed only on 26.03.2001 with a delay of 41 months and in E.O.C.C.No.94 of 2005, a complaint was filed for not filing the returns before the statutory due date i.e., on 30.11.1998 but filed only on 26.03.2001 with a delay of 28 months.

3. On the side of the prosecution, three witnesses were examined as P.Ws.1 to 3 and thereafter the petitioner had filed a petition before the learned Additional Chief Metropolitan Magistrate, E.O.I, Egmore, Chennai, under Section 245 of Cr.P.C. in all the three cases, seeking discharge and the said petitions were dismissed. Aggrieved by the order of the learned Magistrate, the petitioner has preferred these three criminal revision cases.

4. The learned counsel for the petitioner submitted that in all theses three cases, subsequently a notice was issued to the petitioner under Section 148 of the Act granting 30 days time to file the returns. In the case in E.O.C.C.No.94 of 2005, a notice was given under Section 148 of the Act on 23.03.1999 and the petitioner filed the returns on 26.03.1999. Similarly, in other two cases, the returns were filed within the time, after receiving the notice under Section 148 of the Act. Once the notice is given under Section 148 of the Act, the time for filing the returns is extended and as such, there is no violation of Section 139 of the Act and no prosecution could have been initiated against the petitioner. The learned counsel for the petitioner also relied on a decision reported in 2001 247 ITR 528 Madras (K.Inbasagaran Vs. Assistant Commissioner of Income Tax) and also another decision reported in 2004 270 ITR 312 Punjab and Hariana (Sudarshan Jain Vs. Assistant Commissioner).

5. The learned counsel for the petitioner has further submitted that in the complaint filed by the respondent, it is not averred as to how the petitioner committed wilful default in filing the returns and even P.Ws.1 to 3 have not let in any evidence that there was a wilful default on the part of the petitioner in not filing the income tax returns within the due date.

6. Per contra, the learned Senior Special Public Prosecutor for IT Cases submitted that 276CC of the Act is attracted if there is a default in filing the returns within the statutory due date as per Section 139(1) or if there is default as per Section 142(1) or if there is default even after issuing notice under Section 148 of the Act. The petitioner would not be exonerated from the offence committed by him for not filing the income tax returns within the statutory period prescribed as per Section 139(1) of the Act, by filing returns subsequently beyond the statutory due date. There are separate ingrediants in Section 276(1)CC for contravention of Sections 139(1) or 142(1) or 148 of the Act.

7. The learned Senior Special Public Prosecutor also relied on a decision of the Honble Supreme Court reported in Income Tax Reports Volume 266 page 1 (Prakash Nath Khanna and another Vs. Commissioner of Income Tax and another).

8. This Court has considered the submissions made by the learned counsel on either side and perused the records.

9. The fact that the petitioner has not filed the income tax returns before the statutory due date as per Section 139 of the Act is not denied. It appears that even after the notice had been given under Section 142 of the Act, th