LAL SARAF Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner is an income-tax assessee. On the allegations that there was concealment of substantial income for the assessment year 1982-83 a notice was issued under Section 139 of the Income-tax Act (hereinafter referred to as the "Act"), to him on December 6, 1982. THE petitioner failed to submit a return of income by the due date. THE return was actually filed on December 17, 1985. Thus, on the basis of a complaint filed by the Income-tax Officer, the petitioner is being prosecuted under Section 276CC of the Act for not furnishing the return of income by the due date as required under Sub-section (2) of Section 139 and Section 148 of the Act. THE petitioner seeks quashing of his criminal prosecution vide Complaint Case No. 62 of 1986 presently pending before the Special Court (Economic Offences), Muzaffarpur.

(2.) SRI K. N. Jain, learned counsel appearing for the petitioner, argued that on the basis of materials already on the record and not disputed by the Revenue, the petitioner had not wilfully failed to furnish in due time the return of income which he was required to file. The notice under Section 139(2) of the Act is dated December 6, 1982, and a copy of which has been filed as annexure-2. Para 5 of the complaint petition mentions the date of the notice but it is not very legible in the copy of the complaint petition which has been filed. The complaint petition does not contain the averment that the said notice has been served before the expiry of the assessment year but on instructions the petitioner does not dispute that it has been served. Under the provisions of the Act the due date by which the petitioner was required to file his income-tax return would be within thirty days from the date of service of such a notice. In case it is presumed that the notice was served on the last day of expiry of the assessment year, namely, March 31, 1983, the due date would be April 30, 1983. Learned counsel contended that wilful failure to furnish the income-tax return by the due date will be limited to the period which is permissible under the law by way of due date which would be in the present case, April 30, 1983. Some observations made by the Assessing Officer in his assessment order (annexure-6) go to show that the petitioner had already made an application for extension of time for filing the return on the ground that the books of account were lying seized with the income-tax authorities. The assessment order specifically mentions that after the issue of the notice under Section 139(2) of the Act to the assessee an application had been filed by the assessee, i.e., the petitioner in Form No. 6 asking for extension of time till June 30, 1983. The extension of time was prayed for on the ground that the assessee's books of account were lying seized with the Department. It appears that it was on a subsequent date, i.e., March 4, 1984, that a letter was sent by the Department instructing the petitioner-assessee to take extracts or copies of the order, etc., to enable him to file the return. It is not necessary to notice what happened subsequently for the petitioner's contention is that these observations in the assessment order which the Revenue cannot possibly dispute that the petitioner has amply proved that there was no wilful failure on his part to submit the return of income by the due date, i.e., April 30, 1983, as he was prevented from doing so on account of his books of account lying seized with the income-tax authorities.