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S.K. Agarwal. J.

1. This petition u/s. 482 of the Criminal Procedure Code, 1973 (for short, Cr.P.C.), is directed against the order dated 26th July, 1998 passed by the Court of Sh. Ravi Kumar, Additional Sessions Judge, Delhi dismissing Revision against the order framing charge u/s. 276CC of Income Tax Act, 1962 (for short, 'the Act') in the complaint titled "Prabodha Seth Vs. Cornelia Investment Private Limited and Ors."

2. Facts in brief are: that petitioner no 3 is a company registered under the Company Act, 1956, petitioners no. 1 and 2 were its directors during the relevant period. Income Tax return of the company, for the assessment year (1990-91) was not filed within the prescribed period i.e. 31.2.1990. The return could be filed uptil 31.3.1991, under clause (a) of proviso of Section 276CC, of the Act to avoid prosecution. It was actually filed on 17.6.1991, the tax and interest thereon was also deposited. On 20th February, 1992 notice was issued to petitioners, by respondent No. 1, to show cause why prosecution under section 276CC of the Act, should not be initiated against them. The petitioners in their reply dated 27th February, 1992, informed the department that there was no "deliberate" or "willful" default. The wife of petitioner No.1 was suffering from cancer and gravely sick, therefore, the return could not be filed in time. Not satisfied with the reply, one 15th October, 1992, criminal complaint under section 276CC of the Act was filed against the petitioners alleging:-

5. "That a show cause notice why the prosecution under Section 276CC should not be launched was served upon the accused, in reply whereof, the accused submitted that there is no willful default as the wife of the one of the Director V.P. Punj died in November, 1990. The assessing officer found the explanation given by the accused after though and not tenable in law as such this complaint is being filed under section 276CC."

3. Petitioners were summoned; prosecution led pre-charge evidence and vide orders dated 9th December, 1997 the Court of Sh.M.K. Gupta, ACMM framed charge under section 276CC. Petitioners' revision against the order framing charge which was dismissed, on 26th July, 1998. Now, they have assailed the legality and validity of the order framing charge as well as the order dated 26.7.1998 dismissing their revision.

5. In order to appreciate the arguments reference to some of the Sections of the Act is necessary. Section 139(1) mandates that the income-tax return must be filed before due date. Section 139(8) provides that where the return is furnished after the specified date, the assessed shall be liable to pay the interest. Section 276C provides punishment for willful attempt to evade tax. Section 276CC provides punishment for "willful" failure to furnish the returns of income in due time. However, under sub-clause (a) of clause (ii) of the proviso to Section 276CC provides that such a person is not liable to be prosecuted under this Section for his failure to furnish the return by due date (a) if the return is furnished before the expiry of the assessment year or (b) if the tax payable after deduction of the advance tax etc, does not exceed Rs.3,000/-. Thus, if Section 276CC of the Act is read in isolation then mens-rea is an essential requirement of law and that it would be for the prosecution to lead evidence to prove that the return was willfully filed late. However, it is not so.