Bombay High Court
Surinder Sabhlok vs Dy Commissioner Of Income Tax Cnetral ... on 14 August, 2025
2025:BHC-AS:35254
7-WP-3225-2022-F.DOCX
rsk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE JURISDICTION
WRIT PETITION NO.3225 OF 2022
WITH
WRIT PETITION NO.3226 OF 2022
Surinder Sabhlok ... Petitioner
Versus
Dy Commissioner Of Income Tax ... Respondents
Central Circle 8(1), Mumbai And Ors
______________________________________________________
Ms. Ritika Agarwal a/w. Ms. Yaminee Verma i/b Acelegal, for
Petitioner.
Mr. Arjun Gupta, for Respondent-Revenue.
Ms. P. N. Dabholkar, APP, for Respondent-State.
______________________________________________________
CORAM : Jitendra Jain, J.
RESERVED ON : 13 August 2025
PRONOUNCED ON : 14 August 2025
ORDER:
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WRIT PETITION NO.3225 OF 2022
1. Rule. Since the pleadings are completed, the writ
petitions are taken up for final disposal with the lead matter
being taken as Writ Petition No.3225 of 2022, since both
parties agree that issue raised in both the petitions are similar.
2. This Criminal Writ Petition under Section 482 of the
Criminal Procedure Code, 1973 (Cr.P.C.) seeks quashing and
setting aside of C.C. 214/SW/17 dated 23 May 2017 filed by
respondent No.1 for offence under Section 276 CC read with
278E of the Income Tax Act, 1961 (the Act).
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3. The above complaint is filed for the Assessment Year
2011-2012.
4. It is the case of the respondent that the petitioner has
not filed his return of income for Assessment Year 2011-2012
under Section 139(1) of the Act but same was filed under
Section 139 (4) of the Act. According to the complaint since
the return is not filed under Section 139(1) of the Act an
offence under Section 276CC of the Act has been committed.
5. Ms. Agarwal, learned counsel for the petitioner submits
that under Section 276CC of the Act, mens rea is required for
committing an offence and the onus of proving the same is on
the prosecution which is absent in the present case. She
submitted that failure to file the return was not willful and
the return was filed even prior to the discovery of the fact and
that the petitioner has failed to file the return. She further
relied upon the proviso to Section 276CC of the Act and
submitted that since no assessment was done for Assessment
Year 2011-2012 the provisions of Section 276CC of the Act
were not attracted. She further submitted that in 2015
proceedings were initiated under Section 153A of the Act
whereby belated return filed under Section 139(4) has
abated. For all the above reasons, she prayed for quashing of
the complaint. She referred to pages 12 to 15 of the petition
in which extracts of some precedents are reproduced in
support of her submissions. She further handed over
following two decisions in support of her submissions viz.,
Arvind Nandagopal Vs. The Assistant Commissioner of
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Income Tax, Central Circle-21 and Ganga Devi Somani vs.
State of Gujarat2.
6. Per contra, Mr. Gupta, learned counsel for the Revenue
opposed the submissions made by the petitioner and relied
upon the reply filed to contend that the issues raised are
triable and this Court under Section 482 of the Cr. PC. cannot
and should not entertain the present petition. He further
relied upon the case of the Supreme Court in the case os Sasi
Enterprises vs. Assistant Commissioner of Income-tax,3 and
submitted that prima facie case has been made by the
Revenue on the basis of which complaint is filed and the
petitioner would be free to argue all the points raised before
the learned Magistrate. But at this stage the proceedings
cannot be stalled.
7. I have heard learned counsel for the petitioner and the
respondent.
8. Under Section 276 CC, whether the failure to furnish
return within time prescribed under Section 139(1) was
willful or not is an issue which would require examination of
the facts which led to delay in filing of the return of income.
Such facts are to be proved in trial and this Court under
Article 226 of the Constitution of India cannot investigate
such facts which have to be proved by leading evidence which
is outside the scope of jurisdiction of this Court under Article
226 of the Constitution of India.
[2022] 289 Taxman 679(Mad)
[2021] 437 ITR 323(Guj)
[2014] 361 ITR 163 (SC)
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9. Section 278E(1) provides that in any prosecution for
any offence under the Income Tax Act which requires a
culpable mental state on the part of the accused, the Court
shall presume the existence of such mental state but it shall
be a defence for the accused to prove that he had no such
mental stage with respect to the act charged as an offence in
that prosecution. In my view, on a reading of Section 278E
the onus to prove that there was no mens rea lies on the
accused and not on the complainant revenue. Therefore, the
submission made that the Revenue has not discharged the
onus of mens rea cannot be accepted in the present summary
proceedings.
10. Insofar as reliance placed on clause (b) of sub-clause
(ii) to proviso to Section 276CC is concerned, I do not agree
with the submissions made by the learned counsel for the
petitioner that only if an assessment is made the provisions of
Section 276CC are attracted. The said sub-clause only
provides that if difference between the tax assessed and the
tax paid by such person does not exceed Rs.10,000/- then the
proceedings should not be initiated. From that it cannot be
inferred that in every case there has to be an assessment for
attracting provisions of Section 276 CC of the Act.
11. Section 276CC provides for failure to furnish the return
under Section 139(1) of the Act. Admittedly, in the instant
case return is not filed under Section 139(1) of the Act.
Therefore, the offence is said to have been committed on the
failure to furnish the return under Section 139(1) of the Act.
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Therefore, the contention that the petitioner has filed his
return of income prior to any detection is not acceptable. The
decision relied upon by the revenue in the case of Sasi
Enterprises (supra) in turn refers to the decision of the
Supreme Court in the case of Prakash Nath Khanna & Anr. vs
Commissioner of Income Tax & Anr.4 in which it is held that
return filed under Section 139(4) cannot be a defence to hold
that provision of Section 276CC are not attracted.
12. Whether subsequent proceedings of Section 153 A of
the Act has any relevance for an offence under Section
276CC which came to be committed on the last day of filing
return under Section 139 (1) of the Act is an issue which
would also require investigation of the facts. The assessment
order under Section 153 A is not on record. Furthermore to
what extent the assessment made under Section 153A will get
eclipsed by return of income under Section 139(1)/139(4)
would require comparison of the assessed income or the
returned income under these two proceedings. Such an
investigation cannot be carried out by this Court under
Article 226 of the Constitution of India but it is best left for
the trial Court to consider the same.
13. Learned counsel for the petitioner has relied upon the
judgments, extracts of which are reproduced in the petition.
In my view these are disputed questions of facts and are to be
applied to the facts of each case which would require
evidence to be led before the trial Judge. Similarly, the
(2004) 266 ITR 1
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decision of Madras High Court in the case of Arvind
Nandagopal (supra) and Gujarat High Court in the case of
Ganga Devi Somani (supra) are prima facie not applicable to
the facts of the present case and in any case these decisions
have not considered the decision of the Supreme Court in the
case of Sasi Enterprises (supra) which has been relied upon
by learned counsel for the respondent. The decision of the
Supreme Court in Prakash Nath Khanna (supra) also supports
the case of the revenue.
14. In view of the above, petition is not entertained and
petitioner is relegated to face the trial by leading evidence. I
make it clear that the above observations are only for the
purpose of deciding whether to entertain the present petition
and do not reflect my views on merits of the case. All
contentions of both parties are left open to be agitated before
the learned trial court after appraisal of the evidence which
will be led by both parties.
15. In view of above, the petition is dismissed. Interim relief
granted stands vacated. Rule is discharged.
WRIT PETITION NO.3226 OF 2022
16. Both the parties agree that the facts being identical to
that of Writ Petition 3225 of 2022, the order passed in Writ
Petition No.3225 of 2022 would squarely apply to the prayers
sought for in Writ Petition No.3226 of 2022. For the reasons
mentioned in Writ Petition No.3225 of 2022, the Writ Petition
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No.3226 of 2022 is also dismissed. Interim relief granted
stands vacated. Rule is discharged.
(Jitendra Jain, J)
