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9. We have already indicated, for not filing of returns and due to non-compliance of the various statutory provisions, prosecution was initiated under Section 276CC of the Act against all the accused persons and the complaints were filed on 21.08.1997 before the Chief Metropolitan Magistrate, which the High Court by the impugned order has permitted to go on.

10. Shri Shekhar Naphade, learned senior counsel appearing for the appellants, submitted that the High Court did not appreciate the scope of Section 276CC of the Act. Learned senior counsel pointed out that once it is established that on the date of the complaint i.e. on 21.08.1997 the assessment had not attained finality, the complaint became pre-mature as on the date of the complaint and no offence had taken place and all the ingredients of offence under Section 276 of the Act were not satisfied. Learned senior counsel pointed out that unless and until it is shown that failure to file the return was willful or deliberate, no prosecution under Section 276CC could be initiated. Learned senior counsel pointed out that in fact, the second accused in her individual return had disclosed that the firm was doing the business and that it had some income and hence, it cannot be said that A-2 had concealed the fact that the firm had any intention to evade tax liability. Learned senior counsel also submitted that whether the assessee had committed any offence or not will depend upon the final assessment of income and tax liability determined by the appropriate authority and not on the assessment made by the assessing officer. Placing reliance on the proviso to Section 276CC learned senior counsel submitted that, that is the only interpretation that could be given to Section 276CC. In support of his contention reliance was placed on the Judgment of this Court in Commissioner of Wealth Tax, Gujarat v. Vimlaben Vadilal Mehta (Smt.) (1983) 4 SCC 692, Commissioner of Wealth Tax, Gujarat, Ahmedabad v. Vadilal Lallubhai & Ors. (1983) 4 SCC 697 and State of H.P. and others v. Gujarat Ambuja Cement Ltd. and another (2005) 6 SCC 499. Referring to Section 278E of the Act, learned senior counsel submitted that till the assessment does not attain finality, Section 276CC is not complete and the presumption under Section 278E is not attracted. Learned senior counsel also submitted that the High Court has wrongly applied the principles laid down by this Court in Prakash Nath Khanna and another v. Commissioner of Income Tax and another (2004) 9 SCC 686, in any view, which calls for reconsideration. Learned senior counsel submitted that the said Judgment deals with the factum of proviso to Section 276CC of the Act which lays down that there is no offence if the tax amount does not exceed Rs.3,000/-.

23. Section 276CC applies to situations where an assessee has failed to file a return of income as required under Section 139 of the Act or in response to notices issued to the assessee under Section 142 or Section 148 of the Act. The proviso to Section 276CC gives some relief to genuine assesses. The proviso to Section 276CC gives further time till the end of the assessment year to furnish return to avoid prosecution. In other words, even though the due date would be 31st August of the assessment year as per Section 139(1) of the Act, an assessee gets further seven months’ time to complete and file the return and such a return though belated, may not attract prosecution of the assessee. Similarly, the proviso in clause ii(b) to Section 276CC also provides that if the tax payable determined by regular assessment has reduced by advance tax paid and tax deducted at source does not exceed Rs.3,000/-, such an assessee shall not be prosecuted for not furnishing the return under Section 139(1) of the Act. Resultantly, the proviso under Section 276CC takes care of genuine assesses who either file the returns belatedly but within the end of the assessment year or those who have paid substantial amounts of their tax dues by pre-paid taxes, from the rigor of the prosecution under Section 276CC of the Act.

26. We have indicated that on failure to file the returns by the appellants, income tax department made a best judgment assessment under Section 144 of the Act and later show cause notices were issued for initiating prosecution under Section 276CC of the Act. Proviso to Section 276CC nowhere states that the offence under Section 276CC has not been committed by the categories of assesses who fall within the scope of that proviso, but it is stated that such a person shall not be proceeded against. In other words, it only provides that under specific circumstances subject to the proviso, prosecution may not be initiated. An assessee who comes within clause 2(b) to the proviso, no doubt has also committed the offence under Section 276CC, but is exempted from prosecution since the tax falls below Rs.3,000/-. Such an assessee may file belated return before the detection and avail the benefit of the proviso. Proviso cannot control the main section, it only confers some benefit to certain categories of assesses. In short, the offence under Section 276CC is attracted on failure to comply with the provisions of Section 139(1) or failure to respond to the notice issued under Section 142 or Section 148 of the Act within the time limit specified therein.

28. We also find no basis in the contention of the learned senior counsel for the appellant that pendency of the appellate proceedings is a relevant factor for not initiating prosecution proceedings under Section 276CC of the Act. Section 276CC contemplates that an offence is committed on the non-filing of the return and it is totally unrelated to the pendency of assessment proceedings except for second part of the offence for determination of the sentence of the offence, the department may resort to best judgment assessment or otherwise to past years to determine the extent of the breach. The language of Section 276CC, in our view, is clear so also the legislative intention. It is trite law that as already held by this Court in B. Permanand v. Mohan Koikal (2011) 4 SCC 266 that “the language employed in a statute is the determinative factor of the legislative intent. It is well settled principle of law that a court cannot read anything into a statutory provision which is plain and unambiguous”. If it was the intention of the legislature to hold up the prosecution proceedings till the assessment proceedings are completed by way of appeal or otherwise the same would have been provided in Section 276CC itself. Therefore, the contention of the learned senior counsel for the appellant that no prosecution could be initiated till the culmination of assessment proceedings, especially in a case where the appellant had not filed the return as per Section 139(1) of the Act or following the notices issued under Section 142 or Section 148 does not arise.