Delhi District Court
Ito vs Jasjit Singh on 3 March, 2015
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA
ADDL CHIEF METROPOLITAN MAGISTRATE (Spl. Acts) CENTRAL
TIS HAZARI COURTS, DELHI
ITO vs Jasjit Singh
U/s 276CC of Income Tax Act
CC No.02/4
JUDGMENT
(a)Serial no. of the case : 02401R0025352012
(b)Date of commission of offence : Assessment Year 200910
(c)Name of complainant : Sh. Nitin Garg, ACIT
Central Circle11, IT Department,
Jhandewalan, New Delhi
(d)Name, parentage, residence: Jasjit Singh
29/56, Panjabi Bagh (West),
New Delhi
(e)Offence complained of/ proved : U/s 276CC of Income Tax Act, 1961
(f)Plea of accused : Pleaded not guilty
(g)Final order : Acquitted
(h)Date of such order : 03.03.2015 Date of Institution of complaint: 16.01.2012 Arguments heard/order reserved: 13.02.2015 Date of Pronouncement of Judgment : 03.03.2015 Brief statement of the reasons for the decision:
1. Sh. Nitin Garg the then Assistant Commissioner of Income Tax filed the present complaint u/s 276CC of the Income Tax Act, 1961 (for short the 'Act') for the Assessment Year (for short 'AY') 200910 against the accused.
2. The warp and weft of the case are that on 19.02.2009, an action under section 132 of the Act was carried out in the case of Koutons Retail India Limited & other group entities. During search operation, a Memorandum of ITO vs Jasjit Singh U/s 276CC of Income Tax Act CC No.02/4 1 of 18 Understanding (MOU) relating to transaction of sale and purchase of share capital of M/s S.R. Resorts Private Limited was found and seized from the corporate office of M/s Koutons Retail India Limited, 274275, Udyog Vihar, PhaseVI, Sector37, Gurgaon. As per said MOU, accused along with Naresh Jaggi, Bhupinder Pal Singh Sarna and Sanjay Sahni were four sellers on behalf of M/s S.R. Resorts Private Limited. In the post search proceedings, accused made a declaration of income of Rs.16.55 crores on account of Long Term Capital Gain under section 131 of the Act on account of long term capital gains earned by him on sale of stake of share capital in M/s S.R. Resorts Private Limited during the Financial Year 200809, relevant to the AY 200910.
Consequent upon centralization of the case to Central Circle11, the accused came under jurisdiction of the complainant. Thereafter, a notice under section 142 of the Act dated 13.01.2009 Ex.PW1/5 was issued calling accused for filing return of income which was required to be filed by 3 rd November, 2009. The accused did not file the return of income within time given in the said notice. Another notice u/s 142(1) of the Act dated 11.02.2010 Ex.PW1/7 and show cause notice u/s 276CC of the Act dated 16.03.2010 Ex.PW1/8 were issued to the accused. Again a notice u/s 142(1) of the Act dated 14.07.2010 Ex.PW1/9 was issued to the accused for filing return of income but no return of income was filed willfully. However, replies dated 21.07.2010 and 06.09.2010 Ex.PW1/10 and Ex.PW1/11 respectively were filed seeking time to file the return. Ultimately, the return for the AY 200910 was filed on 28.09.2010 Ex.PW1/12 declaring income of Rs.3,58,63,800/ duly signed and verified by ITO vs Jasjit Singh U/s 276CC of Income Tax Act CC No.02/4 2 of 18 the accused. Vide assessment order Ex.PW1/13 dated 29.12.2010, the assessment was completed at Rs.18,79,45,700/ and thereafter present complaint was filed against the accused for willfully not filing the return of income for AY 200910.
3. The instant complaint was filed before the court on 16.01.2009. The accused was summoned for the alleged offence. After precharge evidence, a charge was framed against the accused for the offence u/s 276CC of the Act on 19.11.2012 to which he pleaded not guilty and claimed trial.
4. In order to substantiate the allegations, the prosecution examined the complainant Sh. Nitin Garg as PW1 in post charge evidence. The complainant/PW1 reiterated the facts of the complaint and deposed that the accused failed to file his return of income for the AY 200910 in time and the tax demand was more than Rs.3000/. The witness further deposed that the return of income was filed on 28.09.2010. The witness further deposed that accused wrote a letter dated 27.03.2009 Ex.PW1/4 to Deputy Director of Income Tax (Inv.) surrendering an amount of Rs.16.55 crore for taxation. The witness also proved on record the complaint Ex.PW1/1, sanction to launch present prosecution Ex.PW1/2, list of witnesses Ex.PW1/3, notices u/s 142(1) dated 13.10.2009, dated 11.02.2010 Ex.PW1/5 and Ex. PW1/7 sent to the accused along with postal receipt Ex.PW1/6, show cause notice Ex.PW1/8, another notice u/s 142(1) of the Act issued by the complainant to the accused Ex.PW1/9, replies dated 21.07.10 and 06.09.10 sent by the accused ITO vs Jasjit Singh U/s 276CC of Income Tax Act CC No.02/4 3 of 18 Ex.PW1/10 and Ex.PW1/11, return of income filed by the accused Ex.PW1/12 and assessment order Ex.PW1/13 framed by the complainant. The witness was cross examined at length on behalf of the accused.
5. Statement of accused was recorded u/s 313 Cr.P.C. read with section 281 Cr.P.C separately. In his statement, accused denied the material allegations and stated that firstly, he was assessed as NRI in AY 200910 and as the NRI he was seeking the refund from the department. Accused further stated that there was delay in filing the return because the TDS certificate was not issued to him by the Koutons Group who deducted the TDS amounting to more than Rs.2 crores from him. He also lodged police complaint against the director of Koutons Group. It is further stated that the assessment order Ex.PW1/13 was set aside by the CIT Appeal on 31.01.2012. There was finding to recover return the TDS amount from Koutons Groups as per the order passed by the CIT Appeal. One appeal is also pending before the ITAT which is filed by him for the refund from IT Department. Accused further stated that he has filed one writ petition No.8452 of 2011 before the Hon'ble High Court of Delhi in the month of Nov., 2011 in which notice was issued to the IT Department and due to aforesaid reasons, the sanction in the present complaint was given on 06.01.2012 with a malafide intention. Prior to the same, no prosecution was ever initiated against him. He also filed detailed reply of show cause notice. The AO was not ready to accept my status as NRI and therefore, entire proceeding was initiated by the AO malafidely.
ITO vs Jasjit Singh U/s 276CC of Income Tax Act CC No.02/4 4 of 18
6. In support of claim and contentions, accused examined himself as DW3, one of his friend Sh. Harkirat Singh Chopra s/o Sh. Sohan Singh as DW1, Sh. Bhupender Singh s/o Sh. Sardar Maan Singh as DW2, Ct. Hemant Kumar from PS Punjabi Bagh as DW2, Sanjay Sawhney s/o late Sh. R.K. Sawhney as DW4 and Sh. Naresh Kumar s/o Sh. J.N. Jaggi as DW5.
In his statement, DW1 Sh. Harkirat Singh deposed that he used to appear before the Income Tax Authority in absence of accused when he was asked to file the return of income for AY 200910. The witness also stated that he informed the IT Authority that since TDS certificate from M/s Koutons Limited have not been received and therefore, return could not be filed in time. However, DW1 did not produce any document on record which could suggest that he was authorized by the accused to appear before the IT Authority in absence of accused.
DW2 Sh. Bhupender Singh, DW4 Sh. Sanjay Sawhney and DW4 Sh. Naresh Kumar are formal witnesses.
In his statement as DW3, accused stated that all the returns were filed in time except return of income for AY 200910 and same was filed late as the deductor has not provided him the TDS certificates. He has also relied upon returns filed for previous years collectively marked as mark A, his replies sent to IT Department marked as mark B, complaint lodged by him with PS Punjab Bagh regarding nonissuance of TDS by the deductor marked as mark C copy of order dated 31.01.2012 mark D wherein the CIT(A) has treated him as NRI and copy of the IT return and order dated 28.06.2011 mark E whereby the ITO vs Jasjit Singh U/s 276CC of Income Tax Act CC No.02/4 5 of 18 penalty for getting the late audit imposed by the IT Department was dropped. DW3 further stated that all the cases for preceding six years filed by the IT Department against him has already gone in his favour by the order of the CIT(A) and he has no tax liability till date. Since, the IT Authority was pressurizing him to deposit the tax as per the assessment order, he filed writ petition no.8452/11 before the Hon'ble High Court and IT Department was restrained to take coercive steps on depositing Rs.50 lacs in three EMI which was paid by him. Lateron, the Hon'ble High Court cancelled the payment of installment of Rs.50 lacs vide order dated 07.03.2012 and accordingly he filed an appeal before the ITAT for refund of Rs.50 lacs. The persons who were responsible for issuance of TDS certificate to him has already been arrested and in this regard accused has placed on record copy of the news paper cutting vide page no.3 of "Delhi Jagran" dated 18.07.2013 marked as mark F. He has no previous penalty/default/any criminal proceeding initiated against him by the IT department except present one. DW3 also stated that he filed reply to the show cause notice Ex.DW3/1 and met IT Commissioner personally who also assured him that no prosecution proceeding would be initiated against him for the same.
Witness Ct. Hemant Kumar (inadvertently numbered as DW2) proved on record copy of relevant page of Rojnamcha register dated 02.12.2011 at sl. no.56B regarding complaint made by the accused, as Ex.DW2/1, copy of complaint Ex.DW2/2 and copy of the relevant page of complaint register Ex.DW2/3 in which said complaint was registered.
ITO vs Jasjit Singh U/s 276CC of Income Tax Act CC No.02/4 6 of 18
7. I have heard the final arguments on behalf of both the parties and gone through the record the relevant records. I have also considered the relevant provisions of the Income Tax Act and written arguments filed on behalf of the parties.
8. The relevant provisions of section 276CC which is reproduced below for ready reference: [276CC. Failure to furnish returns of income. If a person willfully fails to furnish in due [the return of fringe benefits which he is required to furnish under subsection (1) of section 115WDE or by notice given under subsection (2) of the said section or section 115WH or] time the return of income which he is required to furnish under subsection (1) of section 139 or by notice given under [clause (i) of subsection (1) of section 142] or [section 148 or section 153A], he shall be punishable, i. in a case where the amount of tax, which would have been evaded if the failure had not been discovered, exceeds one hundred thousand rupees, which rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;
ii. in any other case, with imprisonment for a term which shall not be less than three months but which may extend to three years and with fine:
Provided that a person shall not be proceeded against this section for failure to furnish in due time [return of fringe benefits under subsection (1) of section 115 WD or return of income under subsection (1) of section 139] i. for any assessment year commencing prior to the 1st day of April, 1975; or ii. for any assessment year commencing on or after the 1 st day of April, 1975, if
(a) the return is furnished by him before the expiry of the assessment year; or
(b) the tax payable by him on the total income determined on regular assessment, as reduced by the advance tax, if any, paid, ITO vs Jasjit Singh U/s 276CC of Income Tax Act CC No.02/4 7 of 18 and any tax deducted at source, does not exceed three thousand rupees.]
9. It is argued by the learned counsel for the complainant that quashing of the assessment order Ex.PW1/13 by the ITAT for AY 200910 will not help the accused as he has failed to file the return in due time as required u/s 139(1) of the Act or in response to notice u/s 142(1) of the Act within the time given in the notice. Said notice was also not challenged and therefore, accused may be punished as per law. In support of claim and contentions reliance is placed upon the judgments reported in (i) Parkash Nath Sharma vs. CIT (2004) 266 ITR 0001 (SC) (ii) ACIT vs Nilofar Currimbhoy (2013) 35 Taxmann.com99 (Delhi) (iii) V.P. Punj vs. ACIT 253 ITR 369 (Delhi) and (iv) Sasi Enterprises vs. ACIT (SC).
10.Apart from several other arguments, learned defence counsel has vehemently argued following arguments:
(a)that the effective penalty provisions for not filing the return in time has to be imposed u/s 271F of the Act but the AO has not initiated or imposed the penalty under the said section. This shows the mindset of the AO. The since the accused has explained reasonable cause for delay in filing the return in time and due to this the AO has not initiated any penalty u/s 271F of the Act.
(b)That during the course of cross examination u/s 311 Cr.P.C. PW1 informed that that AY 200910 does not fall under the search period as defined u/s 153C of the Act and due to this he framed the assessment order under the regular ITO vs Jasjit Singh U/s 276CC of Income Tax Act CC No.02/4 8 of 18 provisions of the Act and passed the order u/s 143(3) of the Act. Whereas the AY200910 falls under the search period as defined u/s 153C of the Act because the search was conducted on 19.02.2009 and the AO have had the jurisdiction over the case of the accused on 05.06.2009 when the case was centralized and thus the assessment ought to have been made u/s 153C of the Act and not under section 143(3) of the Act.
(c)That the notice was required to be given under u/s 153C r/w section 153A of the Act for filing the return of income but no such notice was given and notice u/s 142(2) of the Act was issued which is illegal and not maintainable under the law. The accused has filed the appeal before the ITAT on raising said legal issue and validity of the assessment order as the assessment order ought to have been passed u/s 153C of the Act and not under section 143(3) of the Act. Vide order dated 05.11.2014 bearing no. ITA No.1436/D/2012 of the IT Act allowed the said appeal holding the impugned assessment order Ex.PW1/13 illegal as the same was not passed u/s 153C of the Act and quashed the assessment order observing the notice sent u/s 142(2) of the Act as illegal.
11.It is also argued that the accused made a declaration to the IT Department even when he was not having the TDS certificate to show his bonafide and in support of claim and contentions, reliance is placed upon the judgments reported in (i) K.C. Builders & Anr. vs. Assistant Commissioner of Income Tax (2004) ITR 562 (SC) (ii) Shir Lal Saraf vs State of Bihar (1998) 100 Taxman 412 (Pat) (iii) Naray vs. Union of India (1994) 116 CTR (MP) 608 (iv) S.N.P. ITO vs Jasjit Singh U/s 276CC of Income Tax Act CC No.02/4 9 of 18 Punj vs. DCIT (2007) 207 CTR (Del) 325 (v) ITO vs Autofil & Ors (1990) 86 CTR (AP) 57 (vi) Gopalji Shaw vs. ITO & Ors (1988) 73 CTR 264 (vii) Union of India through ITO vs Bhavecha Machinery (2009) 17 DTR (MP) 387.
12.Present complaint was filed by the complainant u/s 276CC for non filing the return of income for the AY 200910 within the stipulated period. In view of section 139(1) of the Act, every person, if his total income during the previous year exceeds the maximum amount which is not chargeable to incometax, is bound to furnish a return of his income in the prescribed form and verified in the prescribed manner before the expiry of four months from the end of the previous year or before the 30th day of June of the assessment year which ever is later. Admittedly, in this case the accused has not filed the return of income in time. The return of income of the accused was due to be filed by 30.09.2009. Late filing of return is not disputed at all. In his statement recorded u/s 313 Cr.P.C as well as in his defence evidence accused admitted that there is delay in filing return of income and and explained the reasons for late filing of return on income that due to nonissuance of TDS by the deductor, the return was not filed within time. PW1 has deposed that as the accused did not file the return within time u/s 139(1) of the I.T. Act, several notices u/s 142(1) of the Act was issued but the accused did not file the return in the given time and the return was filed on 28.09.2010.
13.To prosecute any person u/s 276CC of the Act, there must be regular assessment as defined u/s 2(40) of the Act and assessment is required to be ITO vs Jasjit Singh U/s 276CC of Income Tax Act CC No.02/4 10 of 18 made under sub section 3 of section 143 or 144. But the case in hand is covered u/s 153C of the Act as the present case was filed after search operation.
14.The definition of Regular Assessment is contained in section 2 (40) of the Act and reproduced below: "Regular Assessment means the assessment made under [sub section (3) of section 143] or 144".
15.Section 143 of the Act contains the provisions regarding the assessment of the Income Tax Return filed by the assessee as mentioned: [143. Assessment. [(1) Where a return has been made under section 139, or in response to a notice under subsection (1) of section 142, such return shall be processed in the following manner, namely:
(a) the total income or loss shall be computed after making the following adjustments, namely:
(i) any arithmetical error in the return; or
(ii) an incorrect claim, if such incorrect claim is apparent from any information in the return;
(b) the tax and interest, if any, shall be computed on the basis of the total income computed under clause (a);
(c) the sum payable by, or the amount of refund due to, the assessee shall be determined after adjustment of the tax and interest, if any, computed under clause (b) by any tax deducted at source, any tax collected at source, any advance tax paid, any relief allowable under an agreement under section 90 or section 90A, or any relief allowable under section 91, any rebate allowable under Part A of Chapter VIII, any tax paid on self assessment and any amount paid otherwise by way of tax or interest;
(d) an intimation shall be prepared or generated and sent to the assessee specifying the sum determined to be payable by, or the amount of refund due to the assessee under clause (c); and ITO vs Jasjit Singh U/s 276CC of Income Tax Act CC No.02/4 11 of 18
(e) the amount of refund due to the assessee in pursuance of the determination under clause (c) shall be granted to the assessee:
Provided that an intimation shall also be sent to the assessee in a case where the loss declared in the return by the assessee is adjusted but no tax or interest is payable by, or no refund is due to, him:
Provided further that no intimation under this subsection shall be sent after the expiry of one year from the end of the financial year in which the return is made.
Explanation. For the purpose of of this subsection,
(a) "an incorrect claim apparent from any information in the return"
shall mean a claim, on the basis of an entry, in the return, i. of an item, which is inconsistent with another entry of the same or some other item in such return;
ii. in respect of which the information required to be furnished under this Act to substantiate such entry has not been so furnished; or iii. in respect of a deduction, where such deduction exceeds specified statutory limit which may have been expressed as monetary amount or percentage or ratio or fraction;
(b) the acknowledgment of the return shall be deemed to be the intimation in a case where no sum is payable by, or refundable to, the assessee under clause (c), and where no adjustment has been made under clause(a).
[(2) Where a return has been furnished under section 139, or in response to a notice under subsection (1) of section 142, the Assessing Officer shall, i. where he has reason to believe that any claim of loss, exemption, deduction, allowance or relief made in the return is inadmissible, serve on the assessee a notice specifying particulars of such claim of loss, exemption, deduction, allowance or relief and require him, on a date to be specified therein to produce, or cause to be produced, any evidence or particulars specified therein or on which the assessee may rely in support of such claim:
[Provided that no notice under this clause shall be served on the assessee on or after the 1st day of June, 2003;] ii. notwithstanding anything contained in clause (i), if he considers it necessary or expedient to ensure that the assessee has not ITO vs Jasjit Singh U/s 276CC of Income Tax Act CC No.02/4 12 of 18 understated the income or has not computed excessive loss or has not underpaid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced, any evidence on which the assessee may rely in support of the return:
[Provided that no notice under clause (ii) shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished.] [(3) On the day specified in the notice, i. issued under clause (i) of subsection (2), or as soon afterwards as may be, after hearing such evidence and after taking into account may be, after hearing such evidence and after taking into account such particulars as the assessee may produce, the Assessing Officer shall, by an order in writing, allow or reject the claim or claims specified in such notice and make an assessment determining the total income or loss accordingly, and determine the sum payable by the assessee on the basis of such assessment;
ii. issued under clause (ii) of subsection (2), or as soon afterwords as may be, after hearing such evidence as the assessee may produce and such other evidence as the Assessing Officer may require on specified points, and after taking into account all relevant material which he has gathered, the Assessing Officer shall, by an order in writing make an assessment of the total income or loss of the assessee, and determine the sum payable by him or refund of any amount due to him on the basis of such assessment:] [(4) Where a regular assessment under subsection (3) of this section or section 144 is made,
(a) any tax or interest paid by the assessee under subsection (1) shall be deemed to have been paid towards such regular assessment;
(b) if no refund is due on regular assessment or the amount refunded under subsection (1) exceeds the amount refundable on regular assessment, the whole or the excess amount so refunded shall be deemed to be tax payable by the assessee and he provisions of this Act shall apply accordingly.
ITO vs Jasjit Singh U/s 276CC of Income Tax Act CC No.02/4 13 of 18
16. Section 144 relevant for the decision of this case deals with:
144. Best Judgment assessment. [1] If any person
(a) fails to make the return required [under subsection (1) of section 139] and has not made a return or a revised return under sub section (4) or subsection (5) of that section, or
(b) fails to comply with all the terms of a notice issued under sub section (1) of section 142 [or fails to comply with a direction issued under subsection (2A) of that section], or
(c) having made a return, fails to comply with all the terms of a notice issued under subsection (2) of section 143, the [Assessing Officer], after taking into account all relevant material which the [Assessing Officer] has gathered, [shall, after giving the assessee an opportunity of being heard, make the assessment] of the total income or loss to the best of his judgment and determine the sum payable by the assessee [***] on the basis of such assessment:
[Provided that such opportunity shall be given by the Assessing Officer by serving a notice calling upon the assessee to show cause, on a date and time to be specified in the notice, why the assessment should not be completed to the best of his judgment:
Provided further that it shall not be necessary to give such opportunity in a case where a notice under subsection (1) of section 142 has been issued prior to the making of an assessment under this section.]
17.Relevant provisions of section 153C of the Act is reproduced below for ready reference: [153C. Assessment of income of any other person. [(1)] Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, where the Assessing Officer is satisfied that any money, bullion, jewelery or other valuable article or thing or books of account or documents seized or requisitioned belongs or belong to a person other than the person referred to in section 153A, then the books of account or documents or assets seized or requisitioned shall be haded over to the Assessing Officer having jurisdiction over such other person and that Assessing Officer shall ITO vs Jasjit Singh U/s 276CC of Income Tax Act CC No.02/4 14 of 18 proceed against each such other person and issue such other person notice and assess or reassess income of such other person in accordance with the provisions of section 153A] [(2)] Where books of account or documents or assets seized or requisitioned as referred to in subsection (1) has or have been received by the Assessing Officer having jurisdiction over such other person after the due date of furnishing the return of income for the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under section 132A and in respect of such assessment year
(a) no return of income has been furnished by such other person and no notice under subsection (1) of section 142 has been issued to him, or
(b) a return of income has been furnished by such other person but no notice under subsection (2) of section 143 has been served and limitation of serving the notice under subsection (2) of section 143 has expired, or
(c) assessment or reassessment, if any, has been made, before the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person, such Assessing Officer shall issue the notice and assess or reassess total income of such other person of such assessment year in the manner provided in section 153A.]
18.From bare perusal of this section, it is clear that assessment or reassessment of income of any other person u/s 153C of the Act than the person searched, will be made in accordance with the provisions of the section 153A. As per section 153A(1), the AO has to issue notice calling for the return of income in respect of six assessment years immediately preceding the assessment year relevant to the previous year in which search was conducted and assessed or reassessed the total income of the assessee. In this case search was conducted on 19.02.2009 and the AO have had the jurisdiction over the case ITO vs Jasjit Singh U/s 276CC of Income Tax Act CC No.02/4 15 of 18 of the accused on 05.06.2009 when the case was centralized and thus the assessment order ought to have been made u/s 153C of the Act and not under section 143(3) of the Act. On this ground alone present complaint for prosecution of the case u/s 276CC of the Act is not maintainable.
Furthermore, vide order dated 05.11.2014 bearing no. ITA No.1436/D/2012, the learned ITAT while allowing the appeal filed by the accused, held the impugned assessment order Ex.PW1/13 illegal as the same was not passed u/s 153C of the Act and quashed the assessment order and thus the substratum of filing of present prosecution for noncompliance of section 139 of the Act has also gone as there is no demand of tax as on date exceeding Rs.3000/.
19.The accused has taken one more specific stand that since the TDS certificate from the deductor M/s Koutons Limited has not been issued and therefore, return could not be filed in time. The basic provisions of the TDS is mentioned in ChapterXII of the Act. From the bare perusal of TDS provisions, it is clear that the responsibility is on the part of the payer to deduct TDS and if they fails to deduct or deduct but fails to deposit or fails to issue the TDS certificate then under the Act, deductor will be liable for penalty or prosecution for the offence. Initially, the complainant filed the present complaint against the accused treating him as Indian citizen and lateron on the appeal filed by the accused, accused was/is being treated as NRI. Section 195 of the Act talks about the person responsible for paying to NRI and their duty to deduct income tax on ITO vs Jasjit Singh U/s 276CC of Income Tax Act CC No.02/4 16 of 18 the payments made to NRI at the rate in force. Throughout the case, the stand of the accused is that the TDS could not be filed in time due to nonissuance of TDS by the deductor and this fact was explained to the AO by the accused in his reply. Despite that AO did not bother to investigate the matter properly and present complaint appears to have been filed without any field investigation.
20.In view of the aforesaid legal provisions mentioned above, it is clear that willful failure to furnish the returns u/s 276CC required to be furnished, shall be punishable only if the tax payable by him on the total income determined on regular assessment as reduced by advance tax, if any, paid, and any tax deducted at source, does not exceed Rs.3000/. However, from the aforesaid discussions, it is clear that the AO has erred in judging the nature and category of the case and wrongly issued notice u/s 142(1) of the Act and framed assessment order u/s 143 of the Act while the case of the accused is exclusively covered u/s 153C of the Act and not under section 143(3) of the Act. Thus, the notice u/s 142(2) of the Act issued to the accused is illegal and not maintainable under the law and after quashing of the assessment order as well as holding notice u/s 142(1) of the Act by the Appellate Authority, no question of noncompliance of the provisions of section 139 of the Act or notice u/s 142(1) of the Act survive at all and in such circumstances, accused can not be held liable for the offence u/s 276CC of the Act.
21.Keeping in view the facts and circumstances of the case and aforesaid ITO vs Jasjit Singh U/s 276CC of Income Tax Act CC No.02/4 17 of 18 discussions, this court is of the considered opinion that the complainant has failed to prove the case against the accused beyond reasonable doubt. The present complaint is not maintainable u/s 276CC of the I.T. Act. The complaint is, therefore, dismissed. Accused is acquitted for the offence punishable u/s 276CC of the Income Tax Act. His bail bond stands cancelled. Surety stands discharged. Original documents, if any, be returned to the rightful claimant after endorsement cancelled thereupon. Accused is directed to furnish fresh bail bond in terms of section 437A Cr.P.C. File be consigned to the record room after due compliance.
Judgment be sent to the server www.delhidistrictcourt.nic.in.
(DEVENDRA KUMAR SHARMA) ACMM(Special Acts) CENTRAL TIS HAZARI COURTS DELHI Announced in open court on 03.03.2015 (Total number of page 18) (One spare copy attached) ITO vs Jasjit Singh U/s 276CC of Income Tax Act CC No.02/4 18 of 18