PRABHAKAR A Y HUF Vs. ASSISTANT CIT

JUDGEMENT

(1.) A complaint was filed under ss. 276CC and 278C of the IT Act, 1961, on the allegation that the petitioner had filed his return of income for the asst. yrs. 1987-88 and 1988-89 late wilfully. The return was due under s. 139(1) of the IT Act on 30th June, 1988. As the said return was not filed, a notice was issued under s. 148 of the IT Act, 1961, dt. 2nd March, 1990, calling upon the accused to file the return within 30 days of the receipt of the notice. The notice was served on 9th March, 1990. A penalty proceeding was initiated against the petitioner and the same was confirmed by the CIT(A) on 29th Jan., 1992. A show-cause notice under s. 276CC, dt. 16th March, 1992, was issued calling upon the accused to show cause why prosecution proceedings under s. 276CC should not be taken. In reply, he has stated that he had filed a petition under s. 273A for waiver of penalty and had also filed an appeal against the order of the CIT(A) confirming the penalty and sought for the dropping of proceedings. Whether non-filing of the return as contemplated, is wilful or deliberate is a question of fact. It shall be for the defence to prove that there was such a mental state. Therefore, it is not proper to embark upon an appreciation of the fact situation, under s. 482 of the CrPC. All the contentions of the petitioner are left open to urge before the appropriate Court. The petition is dismissed. Consequently, Criminal Misc. Petitions Nos. 4869 and 4870 of 1992 are dismissed.