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30. Learned counsel appearing on behalf of the Revenue alternatively contended that even if this court holds that the decision of the Supreme Court in the case of Uttam Chand [1982] 133 ITR 909 holds the field, in the present case, the petitioners cannot take advantage of that decision as the same shall not apply to this case because their Lordships were dealing with Section 276B of the Act as it stood prior to the amendment of 1986. It is said that by the amendment of 1986, the words "without reasonable cause or excuse" have been omitted from Section 276B of the Act ; as such, after the amendment, an accused incurs liability of prosecution no sooner it is shown that he has failed to deduct and/or pay the tax within time irrespective of the fact whether he had reasonable cause or not for not deducting and paying the tax within time. It is submitted that the amendment is retrospective. On the other hand, on behalf of the petitioners, it has been submitted that the amendment is neither retrospective nor could the same have been given retrospective operation, as a penal statute cannot be made retrospective. In my view, it is not necessary to decide this question in the present case as to whether the amendment is prospective or retrospective and this question can be decided in a proper case, and, as such, I refrain from deciding the same. I now proceed to consider the submission of learned counsel appearing on behalf of the Revenue on the assumption that the amended Section 276B shall apply to the present case. In this connection, it may be stated that by the Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1986 (Act 46 of 1986) (hereafter referred to as "the Amending Act"), the words "without reasonable cause or excuse" have been omitted from Section 276D and various other sections of the Act and Section 278AA has been inserted in the Act. By the very same Amending Act, Section 278E has been also inserted in the Act. Sections 278AA and 278E read as follows :

34. The fact that, under Section 278AA, an accused has to prove that there was reasonable cause for his such failure would go to show that there is a presumption in favour of the prosecution that the failure of the assessee was without any reasonable cause, otherwise, there was no occasion to insert Section 278AA in the Act. It is said that if this interpretation is given, the amendment by which the words "without reasonable cause or excuse" have been omitted from Section 276B becomes redundant. In my view, it cannot be said so. If these words would not have been omitted from Section 276B, in that event, the provisions of Sections 276B and 278AA would have been conflicting. The prosecutor, in such a case, would have to prove that the accused had no reasonable cause or excuse for his failure ; whereas under Section 278AA, an accused was required to prove that there was reasonable cause for such failure. If the prosecution itself failed to prove that the failure was without any reasonable cause or excuse, in that event, there would have been no occasion for the accused to prove that there was reasonable cause for such failure. If it could have been said that the accused was liable to be prosecuted only when the prosecution was able to show that there was failure on the part of the assessee in deducting and paying the tax, in that event, there was no necessity for inserting Section 278AA in the Act. This provision, in that case, would have become redundant and it is a well-settled canon of interpretation that Legislature does not use redundant words and make redundant provisions in a statute.

38. Learned counsel appearing on behalf of the Revenue contended that Section 278AA of the Act casts an obligation upon an accused to prove before the criminal court during the course of criminal trial by leading oral and documentary evidence that there was reasonable cause for his failure and merely because he was able to prove before a statutory authority under the Act that he had good and sufficient reason for his failure, the obligation upon the accused under Section 278AA of the Act does not stand discharged. From a bare perusal of Section 278AA of the Act, it does not appear that the accused is required to prove before a criminal court by leading independent evidence in relation to reasonable cause for his failure. Such a contingency may arise in a case where no penalty proceeding is initiated, but a criminal prosecution is only launched. In that case, of course, to the satisfaction of the criminal court, the accused has to discharge his statutory obligation by leading evidence in support of his case that he had reasonable cause for failure.

39. By the very same Amending Act by which Section 278AA was inserted, Section 278E was also inserted in the Act. From a bare perusal of the language of these two sections, it would appear that the Legislature has used different language therein. In Section 278E of the Act, it has been laid down that culpable mental state on the part of the accused shall be presumed with regard to such offences under the Act where the same is required and it shall be a defence for the accused to prove the fact that he had no such mental state. Section 278E of the Act uses the expression "defence for the accused" whereas, in Section 278AA, no such expression has been used. It appears that the Legislature was very much conscious in using different expressions in two different provisions both of which have been inserted in the Act by the very same Amending Act. Nothing prevented the Legislature to say in Section 278AA that it shall be a defence for the accused to prove that there was reasonable cause for his failure ; as such, it is not possible to accept the contention of learned counsel appearing for the Revenue that, after the amendment, the accused has to independently prove in the criminal trial by leading evidence that there was reasonable cause for his failure and an order of a statutory authority on merits relating to the very same default cannot be a ground for discontinuing the prosecution.