Prosecution u/s 276CC where assessee filed belated return – Allahabad HC admits application

Income tax prosecution u/s 276CC where assessee filed belated return under section 139(4) – Allahabad High Court admits application

In a recent judgment, the Hon’ble Allahabad High Court has admitted an application contending that where assessee had filed return of income under Section 139(4) of the Income Tax Act, prosecution u/s 276CC for non filing of return of income cannot be lodged against the applicant.

ABCAUS Case Law Citation:
ABCAUS 3896 (2024) (03) HC

In the instant case, the assessee had filed an application under Section 482 Cr.P.C before the Hon’ble Allahabad High Court praying quashing of the summoning/cognizance order and entire proceedings in a Criminal Case u/s 276CC of the Income Tax Act, 1961 (the Act) pending in the court of Chief Judicial Magistrate.

The applicant submitted that for the Assessment Year in question, the Self-Assessment Return had been submitted by the applicants belatedly as per the time prescribed u/s 139(4) of the Act.

Therefore, it was submitted that there was no delay on his part in submitting the return as the same was well within the provisions of Section 139(4) of the Act, though, there was some delay in filing the income tax in terms of Section 139 (1) of Act.

It was contended that the said assessment was accepted and no notice for imposing any penalty u/s 271F of the Act has ever been issued to the applicant and subsequently, in terms of Section 279 notice was issued to the applicant, which was duly replied and thereupon the instant prosecution has been lodged by the Income Tax Department against the applicant, for the offence U/S 276 CC of the Act.

It was further submitted that in the similar situations, the Co-ordinate Bench of the Hon’ble High Court has entertained the similar petitions.

It was also submitted that there was no willful default on applicant’s part in submitting the Income Tax Return because he has submitted his Income Tax Return alongwith the interest in terms of Section 139(4) of the Act.

On the contrary, the ITD submitted that the provisions of Sections 139(1), 139(4) and 271F Income Tax Act, are with regard to the civil consequences of delay in filing the Income Tax Return. However, the offence u/S 276 CC of the Income Tax Act, is complete on the failure of the Assessee in filing the Income Tax Return within the period prescribed in terms of Section 139(1) of the Income Tax Act. Merely, because Section 139(4) of the Income Tax Act provided further time for the assessee to submit the Income Tax Return, it cannot be said that the prosecution u/s 276CC cannot be lodged against the applicant.

The Hon’ble High Court opined that the matter requires consideration and admitted the application.

The Department was directed not to take any coercive action against the applicant till the next date of listing

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