By TIOL News Service

BANGALORE, JAN 13, 2017: THE ISSUE IS - Whether an assessee can be prosecuted u/s 276CC merely on basis of belated filing of his return, in case those returns were accepted and the assessment were carried out. NO IS THE VERDICT.

Facts of the case:

During the subject year, a complaint had been filed u/s 200 of CrPC, after obtaining prior sanction from the CIT in accordance with the provisions of Section 279, alleging violation of Section 276 CC by the assessee. As a result, a notice came to be issued to the assessee u/s 153 calling upon him to file his return. However, the assessee did not file his return in response thereto. The CIT therefore proceeded on the basis that no return had been filed as sought for in this case.

On appeal, the HC held that,

++ The fact that assessee had already filed his return as on the date of the order of sanction, which had gone unnoticed, is not in dispute and the Revenue's counsel would endorse the same. The tenor of Section 276 CC of the I-T Act contemplates that if a person has failed to furnish the return of income in time, it is then that the rigour of the section would be attracted. For, if the return of income had been filed belatedly or otherwise, the section cannot apply at all and therefore, the prosecution ranged against the assessee is vitiated. Consequently, the petition would have to be allowed;

++ It is also to be noticed that the section certainly reads that if the returns are not filed in due time, the rigour would be attracted. But, the fact remains that in the present case on hand, the returns are accepted and assessments are carried out, which would not be the same as holding that the returns filed belatedly have been held as non-est and therefore, the authorities have proceeded thereupon. This would make a difference to the situation and therefore, the contention that the section which prescribes that if the assessee fails to file the return within the time due, the rigour would be attracted, would stand diluted by virtue of the returns having been accepted and assessments having been carried out therein. Consequently, the prosecution initiated against the assessee in terms of Section 276 CC cannot be sustained.

(See 2017-TIOL-83-HC-KAR-IT)