Whether non-filing of Income Tax return are grounds for invocation of the provisions of Section 276CC of the Income Tax Act 1961?

Assessee has to file the return under Section 139(1) of the Act on or before the due date.

Assessee has to file the return under Section 139(1) of the Act on or before the due date. The due date, even, when would be 31st August of the relevant Assessment Year (AY), 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. Proviso to Section 276CC of the Act takes care of genuine Assesses who either file the returns belatedly but within the end of the AY 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. This Proviso would not apply after detection of the failure to file the return and after a notice under Section 142(1)(i) or 148 of the Act is issued calling for filing of the return of income. Both Section 139(1) and Section 142(1) of the Act are referred to in sub-section (4) to Section 139, which specifies the time limit. The expression “whichever is earlier” has to be read with the time if allowed under Section 139(1) or within the time allowed under notice issued under Section 142(1), whichever is earlier. Section 276CC contemplates that an offence is committed on the non-filing of the return. It is does not relates to the pendency of assessment proceedings except for second part of the offence for determination of the sentence of the offence, the department adopt best judgment assessment or otherwise to past years to determine the extent of the breach. Declaration or statement made in the individual returns by partners that the accounts of the firm are not finalized, hence no return has been filed by the firm, will not absolve the firm in filing the ‘statutory return under section 139(1) of the Act. Firm is independently required to file the return and merely because there has been a best judgment assessment under Section 144, the liability of the firm would not be nullified to file the return as per Section 139(1) of the Act. Contention of the partners that since they had in their individual returns indicated that returns could not be filed since the firm’s accounts were not finalized would mean that failure to file return was not willful not acceptable. Court in a prosecution of offence, like Section 276CC of the Act has to presume the existence of mens rea and it is for the assessee or the accused to prove the contrary beyond reasonable doubt. Sasi Enterprises. vs. Assistant Commissioner of Income Tax] (SC, 30.01.2014)