DASARI NARAYANA RAO Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THE petitioner, Dasari Narayana Rao, is the sole accused in CC. No. 154 of 1989, pending on the file of the Additional Chief Metropolitan Magistrate (E. O. I.), Madras. He is being prosecuted on a private complaint filed before the trial magistrate by the respondent who is the Income-tax Officer, Film Ward-I, Madras-6, alleging commission of an offence under section 276CC of the Income-tax Act, 1961, for wilful failure to file the return of income within due time for the assessment year 1985-86.

(2.) IN this petition preferred under section 482, Criminal Procedure Code, 1973, to call for the records and quash the pending prosecution as not maintainable and an abuse of the process of the court, Mr. K. A. Panchapagesan contended, that by charging interest under section 139(8) of the INcome-tax Act, the INcome-tax Officer shall be deemed to have impliedly extended the time for filing the return, and hence the question of wilful default in filing the return of income cannot arise. This very question was considered by me in extenso in Criminal Misc. P. No. 13890 of 1989, and by my order dated February 17, 1992 (K. Jagadeesan v. ITO [1993] 199 ITR 307), I held that, after the amendment of section 139 of the INcome-tax Act Officer cannot be deemed to be implied extension of time to file the return which would in effect exclude wilful default and a consequent prosecution. "No" was the answer to the question posed, I have further held in the aforestated petition that the default being wilful or otherwise was a pure question of fact and more so when prima facie averments were made available in the complaint regarding such default. Mr. Panchapagesan as well as Mr. Ramaswamy, K., agreed that the law laid down by me in Criminal M. P. No. 13890 of 1989 (K. Jagadeesan v. ITO [1993] 199 ITR 307 (Mad)), will squarely govern the ground taken in this petition as well. On the same parity of reasoning, this petition also shall stand dismissed.