SURINDER SABHLOK vs. DY COMMISSIONER OF INCOME TAX CNETRAL CIRCLE 8(1), MUMBAI AND ORS

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 Central Circle 8(1), Mumbai And Ors … Respondents ______________________________________________________ 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 PRONOUNCED ON : : 13 August 2025 14 August 2025 ORDER:- 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). Page 1 of 7

7-WP-3225-2022-F.DOCX 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 Page 2 of 7

7-WP-3225-2022-F.DOCX 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. 1 [2022] 289 Taxman 679(Mad) 2 [2021] 437 ITR 323(Guj) 3 [2014] 361 ITR 163 (SC) Page 3 of 7

7-WP-3225-2022-F.DOCX 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. Page 4 of 7

7-WP-3225-2022-F.DOCX 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 4 (2004) 266 ITR 1 Page 5 of 7

7-WP-3225-2022-F.DOCX 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 Page 6 of 7

7-WP-3225-2022-F.DOCX No.3226 of 2022 is also dismissed. Interim relief granted stands vacated. Rule is discharged. (Jitendra Jain, J) Page 7 of 7