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The writ petitioners challenge the constitutional validity of Section 278E of the Income Tax Act, 1961 (hereinafter referred to as the 'Act').

2. The petitioners are facing prosecution before the Additional Chief Metropolitan Magistrate (E.O. II), Egmore, Chennai-8 for the offence under Section 276CC of the Act. The case of the petitioners is that, the expression 'wilfully' occurring in Section 278E of the Act indicates the mens rea element. This is the basis for the prosecution. Therefore, the prosecution is bound to prove the existence of mens rea on the part of the accused, beyond reasonable doubt. However, by introduction of Section 278E, which gives rise to a presumption as to the culpable mental state of the accused, the entire basis of accusatorial jurisprudence, as accepted and recognised in India, has been shifted. The petitioners contend that while having to defend a wholly baseless and vexatious criminal proceedings, they are also expected to discharge the burden of not possessing the criminal intent and proving it beyond reasonable doubt. According to the petitioners, the impugned provision violates Article 21 of the Constitution of India and their right to pray for discharge from the criminal proceedings has been negated merely on the basis of the impugned provision. According to the petitioners, the guarantee against self-incrimination protected by Article 20(3) of the Constitution has also been taken away from them.

6. Mr. Guru Krishnakumar, learned counsel appearing for the petitioners and Mr. Gopal Subramaniam, learned Additional Solicitor General of India appearing for the respondents made very detailed submissions and also submitted their written arguments, followed by supplementary arguments.

7. Mr. Guru Krishnakumar, learned counsel appearing on behalf of the petitioners submitted that the impugned provision violates Article 21 of the Constitution and in actual operation, it is arbitrary and therefore, it affects Article 14 of the Constitution and further, it also suffers from the vice of vagueness. Learned counsel also submitted that, when Section 276CC of the Act specifically mentions the word 'wilfully', this is rendered otiose by the introduction of Section 278E, which presumes a culpable mental state, namely willfulness. Learned counsel submitted that the impugned provision lacks guidelines and therefore, it is capable of misuse, untramelled as it is, by reasonable parameters. According to the learned counsel, Section 278E was not intended to be applied to Section 276CC. On facts, the learned counsel submitted that in two cases, there was no provision for imposing penalty at all and therefore, the launching of criminal proceedings itself is without jurisdiction.

(2) The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so."

Section 276CC of the Income Tax Act reads thus :

"Failure to furnish returns of income.

276CC. If a person wilfully fails to furnish in due time the return of fringe benefits which he is required to furnish under sub-section (1) of section 115WD or by notice given under sub-section (2) of the said section or section 115WH or the return of total income which he is required to furnish under sub-section (1) of section 139 or by notice given under clause (i) of sub-section (1) of section 142 or section 148 or section 153A, he shall be punishable, 

72. It was also submitted on behalf of the petitioners that the offending provision renders the word 'wilfully' in Section 276CC of the Act and other such words indicating culpable mental state otiose. Such a situation would arise only if the accused was not given any opportunity to prove the lack of culpable mental state on his part. If Section 278E had been otherwise worded as to exclude the requirement of culpable mental state, then we could accept the submission that the word 'wilfully' had been rendered otiose. On the other hand, it is only because the mens rea is still a requisite element of the offence under Section 276CC that the legislation has required the petitioners to show that for compelling reasons, the petitioners could not file the returns in time. This itself only underscores the position that the element of mens rea has not been excluded because of the impugned provision.