# Jai Shankar Singh (Karta) v. U.O.I. & Ors

- **Citation:** (2021) 11 ILRA 442
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-20
- **Case number:** Application U/S 482 No. 10674 of 2021
- **Bench:** Vivek Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-shankar-singh-karta-v-u-o-i-ors-46575
- **Pages:** 8

## Headnote

Income Tax Act, 1961- Section 276 - CCApplicant-an assessee-he belatedly submitted
return-issued show cause notice-no reply by
the Applicant-'in due time' used in section 276
-CC-no provision for condonation-as due term
prescribed u/s 139 (1) or (2) will not get
diluted by filing return u/s 139 (4) -it is against
the legislative intent-.

Held, Thus, when examined in light of said legal
position, then the argument that applicant had
already furnished his return in terms of Section 139
(4) will not take away the liability of filing the return
'in due time' as mentioned in Section 276-CC, merely
because no notice was issued prior to filing of the
return. (para 38)

Application dismissed. (E-9)

List of Cases cited:

## Text

442 INDIAN LAW REPORTS ALLAHABAD SERIES
under the facts of the present case which relate
to proceedings under a special Act, particularly
in view of the provisions under Section 5 of the
Code.

21. Learned counsel for the applicant has
not been able to dispute the aforesaid legal
position.

22. No other ground was urged.

23. For the aforestated reasons, this Court
is of the view that the orders passed by the
courts below do not warrant any interference.

24. The application under Section 482
Cr.P.C. accordingly stands dismissed.
----------
(2021)11ILR A442
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2021

BEFORE

THE HON'BLE VIVEK AGARWAL, J.

Application U/S 482 No. 10674 of 2021

Jai Shankar Singh (Karta) ....Applicant
Versus
U.O.I. & Ors. ....Opposite Parties

Counsel for the Applicant:
Sri Amit Mahajan

Counsel for the Opposite Parties:
G.A.

Income Tax Act, 1961- Section 276 - CCApplicant-an assessee-he belatedly submitted
return-issued show cause notice-no reply by
the Applicant-'in due time' used in section 276
-CC-no provision for condonation-as due term
prescribed u/s 139 (1) or (2) will not get
diluted by filing return u/s 139 (4) -it is against
the legislative intent-.

Held, Thus, when examined in light of said legal
position, then the argument that applicant had
already furnished his return in terms of Section 139
(4) will not take away the liability of filing the return
'in due time' as mentioned in Section 276-CC, merely
because no notice was issued prior to filing of the
return. (para 38)

Application dismissed. (E-9)

List of Cases cited:

1. Suchitra Components Ltd. Vs Commissioner of
Central Excise, Guntur; 2007 (208) ELT 321 (SC)

2. Commissioner of Central [4] Application U/S 482
No. - 10674 of 2021 Excise, Bangalore Vs Mysore
Electricals Industries Ltd; 2006 (204) ELT 517 (SC)

3. Director of Income Tax Circle 26 (1), New Delhi Vs
S.R.M.B. Dairy Farming (P) Ltd.; [2018 (400) ITR 9]

4. S.C. Naregal Vs Commissioner of Income Tax &
ors.; [2019 (418) ITR 455 (SC)]

5. Rakapalli Raja Rama Gopala Rao Vs Naragani
Govinda Sehararao & anr.; AIR 1989 SC 2185

6. St. of Orissa & ors. Vs Mohd. Illiyas; (2006) 1 SCC
275

7. Income-Tax Officer Vs Autofil & ors.; [1990 (184)
ITR 47]

8. Narayan Vs U.O.I. ; [1994 (208) ITR 82 (M.P.)

9. Rajkumar Thiyagarajan Vs Income Tax Department,
Ward II, Theni; [2021 (277) Taxman 437 (Madras)]

10. Suresh Sholapurmath Vs Income Tax Department;
(2017) 397 ITR 147

11. Forzza Projects (P) Ltd. & ors. Vs Principal,
Commissioner of Income Tax, Kochi & ors.; [2021 (2)
KLJ 473]

12. M/S. Jai Fibres Ltd. Vs Commissioner of Central
Excise, Mumbai-III; (2008) 1 SCC 434

13. Jay Mahakali Rolling Mills Vs U.O.I. & ors.; (2007)
12 SCC 198
11 All. Jai Shankar Singh (Karta) Vs. U.O.I. & Ors.
443
14. Prakash Nath Khanna & ors. Vs Commissioner of
Income Tax & ors.; [2004 (266)

15. Vodafone International Holdings B.Vs Vs U.O.I. &
ors.; (2012) 6 SCC 613

16. Hyderabad Asbestos Cement Products & ors. Vs
U.O.I. & ors.; (2000) 1 SCC 426

17. Scrutton L.J. in Green Vs Premier Glynrhonwy
Slate Co. (1928) 1 KB 561, 56

18. Mersey Docks and Harbour Board Vs Vs
Henderson Brors.; (1888) 13 AC 595, P.603

19. Pooran Singh & ors. Vs St. of M.P.; AIR 1965 SC
1583 (para-5)

20. U.O.I. (UOI) & ors. Vs IndSwift Laboratories Ltd.
(2011) 4 SCC 635

(Delivered by Hon'ble Vivek Agarwal, J.)

1. Sri Amit Mahajan, learned counsel for
the applicant and Sri Subham Agarwal, learned
counsel for the respondents.

2. This application under Section 482
Cr.P.C. has been filed seeking quashing of the
summoning order dated 16.01.2018 and non
bailable warrants issued on 11.12.2019 against
the accused in Complaint Case No.28 of 2018,
under Section 276-CC of the Income Tax Act,
1961 (Union of India vs. Jai Shankar Singh),
pending in the court of Ld. Special Chief
Judicial Magistrate, Varanasi.

3. Learned counsel for the applicant
submits that applicant is an income tax assessee
as defined under Section 2(7) of the Income Tax
Act, 1961 (hereinafter referred as ''Act') and has
been regularly paying income tax. He has been
allotted with Pan No. AAHHJ6630A and is karta
of M/s Jai Shankar Singh (HUF). It is submitted
that applicant had filed his return of income
belatedly on 31.03.2017 for the assessment year
2015-16
declaring
totaling
income
of
Rs.24,12,050/-
(twenty four
lakhs twelve
thousand fifty) and had deposited a sum of
Rs.8,28,930/- (eight lakhs twenty eight thousand
nine thirty) as self assessment tax on 31.03.2017
alongwith interest payable under Section 234-A
and 234-C amounting to Rs.82,892/- (eighty two
thousand eight hundred ninety two), though as
per the provisions contained in Section 139(1) of
the Act, he was required to file his return of
income on or before 07.09.2015.

4. It is submitted that the Deputy
Commissioner of Income Tax, Circle- 3,
Varanasi filed a complaint in his official
capacity at the instance of the Principal
Commissioner of Income Tax, Varanasi on
being authorized and granted sanction under
Section 279(1) of the Act on 08.01.2018.

5. It is mentioned in the sanction order that
a show cause notice was sent to the applicant on
30.11.2017 by speed post asking the applicant to
appear and file reply on or before 15.12.2017,
but despite service of show cause notice on
06.12.2017 and even thereafter applicant did not
file any reply nor attended office of the
authority. Though, according to the applicant he
never received any show cause notice.

6. Applicant's grievance is that since
applicant had filed income tax return though
belatedly on 31.03.2017 alongwith penalty and
interest, thus there being no mens-rea on the part
of the applicant, therefore, issuance of show
cause
notice
after
applicant
had
made
compliance and deposited the tax did not call for
any action. It is submitted that it is not a case of
failure to furnish returns of Income Tax so to
attact action under Section 276-CC of the
Income Tax Act, 1961, merely because assessee
had filed his return belatedly by 19 months.

7. Applicant has placed reliance on
Circular No.24 of 2019 dated 09.09.2019 issued
by the Central Board of Direct Taxes, New
Delhi, Annexure-5, to the petition to point out
444 INDIAN LAW REPORTS ALLAHABAD SERIES
that in this circular in Clause-(4), it is mentioned
that cases where the amount of tax, which would
have been evaded if the failure had not been
discovered, is Rs.25 lakhs or below, shall not be
processed for prosecution except with the
previous
administrative
approval
of
the
Collagium of 2CCIT/DGIT rank officers as
mentioned in para-3. It is submitted that in terms
of this circular also, since liability of tax is less
than Rs.25 lakhs, no action is warranted on part
of the respondents.

8. Reliance is placed on the judgment of
Supreme Court of India in case of Suchitra
Components Ltd. Vs. Commissioner of Central
Excise, Guntur; 2007 (208) ELT 321 (SC),
wherein, relying on the judgment of Supreme
Court in case of Commissioner of Central
Excise, Bangalore Vs. Mysore Electricals
Industries Ltd; 2006 (204) ELT 517 (SC), it is
held that a beneficial circular has to be applied
retrospectively while oppressive circular has to
be applied prospectively. Thus, when the
circular is against the asssessee, they have right
to claim enforcement of the same prospectively.
Placing reliance on this decision of Supreme
Court, it is submitted that Circular No.24 of
2019 shall apply retrospectively and its benefit
can be given to the applicant.

9. Similarly, reliance is placed on the
judgment of Supreme Court in case of Director
of Income Tax Circle 26 (1), New Delhi Vs.
S.R.M.B. Dairy Farming (P) Ltd.; [2018 (400)
ITR 9], wherein, it is held that whether Circular
No.3 of 2011 dated 09.02.2011 issued as a
measure for reducing litigation by revising
monitory limits for filing of appeals by
department before Appellate Authorities would
apply even to pending matters, but subject to
two caveats that this circular would not be
applied by the High Courts Ipso facto, when
matter had a cascading effect and where
common principles may be involved in a
subsequent group of matters or a large number
of matters.

10. Reliance is also placed on the judgment
of Supreme Court in case of S.C. Naregal Vs.
Commissioner of Income Tax and others;
[2019 (418) ITR 455 (SC)], wherein again, it is
held that instructions of C.B.D.T. No.05 of 2008
dated 15.05.2008 revising monitory limit to file
appeal would apply even to pending matters
when, there was no possibility of cascading
effect, nor issue was involved in group of
matters, it has been answered in affirmative in
favour of the assessee.

11. Reliance is also placed on order of coordinate Benches in Application under Section
482 No.2736 of 2003 (Chhotey Lal Vs. Union of
India and another) and Application under
Section 482 No.2730 of 2003 (Chhotey Lal Vs.
Union of India and another) dated 09.01.2017,
wherein, on concession by the learned counsel
for the opposite party no.2 that there is Circular
of C.B.D.T. to the effect that in case of the
prosecution, the proceeding would be dropped
against the assessee, who is above the age of 70
years, Application U/S 482 was disposed off.

12. Reliance is also placed on the
provisions contained in Section 278-E of the
Income Tax Act, which deals with presumption
as to the culpable mind and reads as under:-

"278-E.(1) In any prosecution for any
offence under this 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 defense for the accused to prove
the fact that he had no such mental state with
respect to the Act charged as an offence in the
prosecution.

Explanation:- In this sub-Section
"culpable mental state" includes intention,
11 All. Jai Shankar Singh (Karta) Vs. U.O.I. & Ors.
445
motive or knowledge of a fact or belief in, or
reason to believe, a fact.

(2) For the purposes of this Section, a
fact is said to be proved only when the court
believes it to exist beyond reasonable doubt and
not merely when its existence is established by a
preponderance of probability."

13. Reliance is also placed on the judgment
of Supreme Court in case of Rakapalli Raja
Rama Gopala Rao vs Naragani Govinda
Sehararao & another; AIR 1989 SC 2185,
wherein, it is held that an act is said to be wilful,
if it is intentional, conscious and deliberate.

14. Similarly, reliance is placed on the
judgment of Supreme Court in case of State of
Orissa & Others Vs. Mohd. Illiyas; (2006) 1
SCC 275, wherein the Supreme Court has
considered the true import of the word ''wilful'
and placing reliance on the judgment of
Rakapalli Raja Rama Gopala Rao vs Naragani
Govinda Sehararao & another (supra) has held
that an act is said to be ''wilful', if it is
intentional, conscious and deliberate. It is further
held that the expression ''wilful' excludes casual,
accidental, bona fide or unintentional acts or
genuine inability. It is to be noted that a wilful
act does not encompass, accidental, involuntary,
or negligence. It must be intentional, deliberate
calculated and conscious wilful knowledge of
legal consequences flowing therefrom. The
expression ''wilful' means an act done with a bad
purpose, with an evil motive.

15. Reliance is placed on the judgment of
High Court of Andhra Pradesh in case of
Income-Tax Officer Vs. Autofil and others;
[1990 (184) ITR 47], wherein, it is held that in
terms of the provisions contained in Section
276-CC of the Income Tax Act, 1961, there is
failure to furnish returns of income and they
were filed late for relevant assessment years
for reasons that due to indisposition of its
clerk, day-to-day accounts could not be
finalized and that partners were not conversant
with preparation of profit and loss account and
balance-sheet, however, assessee had paid not
only advance tax but also penal interest and
penalty for late filing of returns. It is held that
in absence of presence of mens-rea or bad
motive and guilty mind on the part of the
assessee, its partner could not be prosecuted
under Section 276-CC.

16. Reliance is also placed on judgment
of High Court of Madhya Pradesh in case of
Narayan Vs. Union of India; [1994 (208) ITR
82 (M.P.)] wherein, the ratio is that, it is not
merely failure to file return in time which
constitutes offence under Section 276-CC of
the Income Tax Act, 1961, but failure to file
return in time must be proved by clear, cogent
and reliable evidence to be wilful and there
should be no plausible doubt of its being
wilful. It is held that ingredients of delay
being
wilful
being
not proved
beyond
reasonable doubt by prosecution, therefore,
petitioner was to be acquitted of offence under
Section 276-CC.

17. Reliance is also placed on the
judgment of Madras High Court in case of
Rajkumar Thiyagarajan Vs. Income Tax
Department, Ward II, Theni; [2021 (277)
Taxman 437 (Madras)], wherein, it is held
that if assessee failed to file return in time and
files it later on, then revenue's complaint
against assessee under Section 276-C(1)(i) and
Section 276-CC is nothing but clear abuse of
process of law and it cannot be substantiated.

18. Reliance is also placed on the judgment
of
Supreme
Court
in
case
of
Suresh
Sholapurmath Vs. Income Tax Department;
(2017) 397 ITR 147, wherein, it is held that in
view of the fact that total amount involved was
below Rs.25,000/- and same had already been
paid with interest long ago, proceeding under
446 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 276-C/277 initiated against assessee
were quashed in favour of the assessee.

19. Reliance is also placed on the judgment
of High Court of Kerala in case of Forzza
Projects (P) Ltd. and others Vs. Principal,
Commissioner of Income Tax, Kochi and
others; [2021 (2) KLJ 473], wherein, it is held
that if there was only a failure on part of the
assessee to pay tax in time, which was later on
paid after availing installment facilities with
interest, then mere failure to pay income tax
based on self assessment would not constitute
offence under Section 276-C(2).

20. Learned counsel for the respondentDepartment, in his turn, places reliance on the
judgment of Supreme Court in case of M/S. Jai
Fibres Ltd. Vs. Commissioner of Central
Excise, Mumbai-III; (2008) 1 SCC 434
wherein, Supreme Court has held that words
"henceforth" used by the Board must lead to the
conclusion that only prospective effect thereto
could be given and not a retrospective effect.
Drawing attention to the Circular No.24 of 2019
dated 09.09.2019, it is submitted that in
paragraph-5 of the Circular itself, it is mentioned
that this circular shall come into effect
immediately and shall apply to all the pending
cases, where complaint is yet to be filed. It is
submitted that this circular has no retrospective
application, inasmuch
as,
complaint
was,
admittedly, filed on 16.01.2018, Annexure-4, to
the Application, before the court of Special
C.J.M., Varanasi and once complaint was filed
Circular No.24 of 2019 will not be of any help to
the applicant.

21. Reliance is also placed on the decision
of Supreme Court in case of Jay Mahakali
Rolling Mills Vs. Union of India and others;
(2007) 12 SCC 198, wherein words ''now', used
in circulars and clarifications on excise and
customs circulars dated 31.03.1987 has been
interpreted and it is held that the effect of the
word "now" is that it is to operate henceforth. If
the intention was to give retrospective effect, it
would have been stated to be so specifically.

22. In para-9, it is held that "Retrospective"
means looking backward, contemplating what is
past, having reference to a statute or things
existing
before
the
Statute
in
question.
Retrospective law means a law which looks
backward or contemplates the past; one, which
is made to affect acts or facts occurring, or rights
occurring,
before
it
comes
into
force.
Retroactive statute means a statute, which
creates a new obligation on transactions or
considerations or destroys or impairs vested
rights.

23. Reliance is also placed on the judgment
of Supreme Court in Prakash Nath Khanna and
others Vs. Commissioner of Income Tax and
others; [2004 (266) ITR 1 (SC)], wherein it is
held that one of the significant terms used in
Section 276-CC is ''in due time'. The time within
which the return is to be furnished is indicated
only in sub-Section (1) of Section 139 and not in
sub-Section (4) of Section 139, that being so,
even if a return is filed in terms of the subSection 4 of Section 139, that would not dilute
the infraction in not furnishing the return in due
time as prescribed under sub-Section (1) of
Section 139. Otherwise, the use of expression
"in due time" would lose its relevance and it
cannot be said that the said expression was used
without any purpose. Before substitution of
expression "Clause (1) of sub-Section (1) of
Section 142' by Direct Tax Laws (Amendment)
Act, 1987, w.e.f. 01.04.1989, the expression
used was "sub-Section (2) of Section 139". At
the relevant point of time, the assessing officer
was empowered to issue a notice requiring
furnishing of a return within the time indicated
therein. That means the infractions which are
covered by Section 276-CC relate to nonfurnishing of return within the time in terms of
sub-Section (1) or indicated in the notice given
11 All. Jai Shankar Singh (Karta) Vs. U.O.I. & Ors.
447
under sub-Section (2) of Section 139. There is
no condonation of said infraction, even if a
return is filed in terms of sub-Section (4).
Accepting such a plea would mean that a
person who has not filed a return within the due
time as Prescribed under sub-Section (1) or (2)
of Section 139 would get benefit by filing the
return under Section 139 (4) much later. This
cannot certainly be the legislative intent. It is
further held that the term of imprisonment is
higher when the amount of tax would have
been evaded, but for the discovery of the failure
to furnish the return exceeds Rs.1,00,000/-(one
lakh). If the plea of the applicant is accepted, it
would mean that in a given case where there is
infraction and where a return has not been
furnished in terms of sub-Section (1) of Section
139 or even in response to a notice issued in
terms of sub-Section (2), the consequences
flowing from non-furnishing of return would
get obliterated. At the relevant point of time,
Section 139(4)(a) permitted filing of return,
where, return has not been filed within subSection (1) and sub-Section (2). The time limit
was provided in Clause (b). Section 276-CC
refers to "due time" in relation to sub-Sections
(1) and (2) of Section 139 and not to subSection (4). Had the legislature intended to
cover sub-Section (4) also, use of expression
"Section 139" alone would have sufficed. It
cannot be said that legislature without any
purpose or intent specified only the subSections (1) and (2) and the conspicuous
omission of sub-Section (4) has no meaning or
purpose behind it. Sub-Section (4) of Section
139 cannot by any stretch of imagination
control operation of sub-Section (1), wherein, a
fixed period for furnishing the return is
stipulated. The mere fact that for purposes of
assessment and carrying forward and to set-off
losses, it is treated as one filed within subSections (1) or (2) cannot be pressed into
service to claim it to be actually one such,
though, it is factually and really not by
extending it beyond its legitimate purpose.

24. It is further held that whether there was
wilful failure to furnish the return is a matter
which is to be adjudicated factually by the court,
which deals with the prosecution case. It is held
that there is a statutory presumption prescribed
in Section 278-E. The Court has to presume the
existence of culpable mental state, and absence
of such mental state can be pleaded by an
accused as a defense in respect to the act
charged as an offence in the prosecution.
Therefore, the factual aspects highlighted by the
applicants were rightly not dealt by the High
Court. This is a matter of trial. It is certainly
open to the applicants to plead absence of
culpable mental state when the matter is taken
up for trial and on such appreciation, appeals
were dismissed.

25. After hearing learned counsel for the
parties and going through the material produced
by them certain facts needs to be answered
namely,
Circular
No.24
of
2019
dated
09.09.2019 has no retrospective application as is
evident from the law laid down in case of M/s.
Jay Mahakali Rolling Mills Vs. Union of India
and others (supra) and law laid down in case of
Director of Income Tax Circle 26 (1), New
Delhi Vs. S.R.M.B. Dairy Farming (P) Ltd.
(supra) will not be applicable looking to the
language of the circular itself as is used in para-5
of the circular specifically providing that it shall
be applicable only to all pending cases, where
complaint is yet to be filed, when, admittedly,
complaint was filed prior to coming into force of
this circular.

26. Similarly, law laid down in case of
S.C. Naregal Vs. Commissioner of Income Tax,
Hubli (supra) will also not be applicable and on
its
own
facts,
these
judgments
are
distinguishable and will not apply to the facts
and circumstances of the present case.

27. Similarly, reliance is placed on
Circular dated 24.04.2008 to demonstrate that
448 INDIAN LAW REPORTS ALLAHABAD SERIES
for offences under Section 278, it provides that
in case of an individual, he shall not ordinarily
be proceeded for launching prosecution for any
offence, if the individual concerned has attained
age of 70 years at the time of the commission of
offence will also not be applicable as has been
applied by a co-ordinate Bench in case of
Chhotey Lal Vs. Union of India and another
(supra), because if this proviso is applied, then
it will frustrate the ratio of the law laid down by
the Supreme Court in case of Prakash Nath
Khanna and another Vs. Commissioner of
Income Tax and another (supra).

28. Same is the situation in regard to the
judgments cited by the applicant in case of
Rakapalli Raja Rama Gopala Rao vs Naragani
Govinda Sehararao & another (supra), which is
not a judgment on tax statute but a judgment in
regard to the Buildings (Lease, Rent And
Eviction) Control Act, 1960, and cannot be
given same interpretation as is to be given to a
fiscal statute which require strict interpretation
in terms of the law laid down by Supreme Court
in case of Vodafone International Holdings
B.V. Vs. Union of India (UOI) and others;
(2012) 6 SCC 613.

29. Judgment in case of State of Orissa and
others Vs. Mohd. Illiyas (supra) is also in
relation to the interpretation of the provisions of
Orissa Gram Panchayat Act and will again be
not covered by the law laid down by Supreme
Court in regard to interpretation to the fiscal
laws.

30. Judgments given by various High
Courts of Andhra Pradesh in case of Income Tax
Officer Vs. Autofil (supra), High Court of
Madhya Pradesh in case of Narayan Vs. Union
of India (supra), High Court of Madras in case
of Rajkumar Thiyagarajan Vs. Income Tax
Department, Madurai (supra) turn on to their
own facts. In fact, High Court of Madras has not
taken into consideration law laid down by
Supreme Court in case of Prakash Nath Khanna
and another Vs. Commissioner of Income Tax
and another (supra), where judgment was
delivered on 16.02.2004.

31.

Judgment
in
case
of
Suresh
Sholapurmath Vs. Income Tax Department
(supra) is also distinguishable on its own facts,
inasmuch as, Supreme Court quashed the
proceedings as the amount involved was meagre
and below Rs.25,000/- and was already paid
with interest long ago. Thus, it held that amount
involved was small and had already been paid
with interest long ago, the Circular dated
07.02.1992 squarely applied and, therefore, no
proceedings should have been filed as the
amount was below Rs.25,000/- There is no
mention of a clause like Clause (5) in C.B.D.T.
Circular No.24 of 2019, specifying conditions as
to the date and time of applicability.

32. Judgment in case of Forzza Projects (P)
Ltd. Vs. Principal Commissioner of Income Tax
(supra) is a case under Section 276-C of Income
Tax Act, 1961 and not under the provisions of
Section 276-CC, therefore, has no application to
the facts of the present case.

33. Thus, when facts of the present case
are examined in the light of the law laid down
by Supreme Court in case of Prakash Nath
Khanna and another Vs. Commissioner of
Income Tax and another (surpa), then it is
evident that use of words ''in due time' is a
significant term used in Section 276-CC and
relates to non-furnishing of return within the
time in terms of sub-Section (1) or indicated in
the notice given under sub-Section (2) of Section
139. There is no provision for condonation of
the said infraction, even if, a return is filed in
terms of sub-Sections (4) of Section 139 because
due time as prescribed under sub-Section (1) or
(2) of Section 139 will not get diluted by filing
return under Section 139(4) much later as it is
against the legislative intent.
11 All. Richa Dubey Vs. State of U.P. & Anr.
449

34. Contention of applicant's counsel that
return was filed prior to issuance of any notice
by the department is to be examined in terms of
the use of word ''or' under sub-Sections (1) or (2)
of Section 139. Word ''or' is normally
disjunctive and ''and' is normally conjunctive as
has been held in case of Hyderabad Asbestos
Cement Products and others vs. Union of India
and others; (2000) 1 SCC 426, wherein, it is
held that ''or' in its natural sense denotes an
''alternative' and is not read as ''substitutive'.

35. In case of Nasiruddin Vs. State
Transport Appellate Tribunal; AIR 1976 SC 331
P.338 quoting Scrutton L.J. in Green v.
Premier Glynrhonwy Slate Co. (1928) 1 KB
561, 568 it is held that "You do sometimes read
''or' as ''and' in a statute. But you do not do it
unless you are obliged because ''or' does not
generally mean ''and' and ''and' does not
generally mean ''or'.

36. Lord Halsbury in case of Mersey
Docks and Harbour Board v. V. Henderson
Brothers; (1888) 13 AC 595, P.603 and
Supreme Court in case of Pooran Singh and
others Vs. State of M.P.; AIR 1965 SC 1583
(para-5) has held that the reading of ''or' as ''and'
is not to be resorted to, "unless some other part
of the same statute has the clear intention of it
requires that to be done.

37. In case of Union of India (UOI) and
Ors. vs. Ind-Swift Laboratories Ltd. (2011) 4
SCC 635, In Para-18, it is held that where
provision is clear and unambigous the word ''or'
cannot be read as ''and' by applying the principle
of reading down.

38. Thus, when examined in light of said
legal position, then the argument that applicant
had already furnished his return in terms of
Section 139 (4) will not take away the liability
of filing the return ''in due time' as mentioned in
Section 276-CC, merely because no notice was
issued prior to filing of the return.

39. Law laid down in case of State of
Orissa and others Vs. Mohd. Illiyas (supra)
deals with situation, which are bona fide or
unintentional or genuine inability. Applicant
was, if acting bonafidely was obliged to explain
his acts to be bonafide or unintentional or
genuine inability by furnishing his explanation,
which is not on record accept a bald assertion
that notice under Section 139(2) was not
received.

40. Thus, in the light of the law laid down
by Supreme Court in case of Prakash Nath
Khanna and another Vs. Commissioner of
Income Tax and another (supra), the ratio being
that, though, plea of lack of culpable mental
state may be evoked by an accused in defense,
but that cannot be seen at the time of filing of
the complaint or at the stage of taking of the
cognizance in terms of the provisions contained
in Section 278-E(1) of the Income Tax Act,
1961, which deals with presumption of existence
of such mental state being a matter of trial and,
therefore, the petition/Application deserves to be
dismissed and is dismissed.
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(2021)11ILR A449
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.10.2021

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 No. 12495 of 2021

Richa Dubey ....Applicant
Versus
State of U.P. & Anr. ....Opposite Parties

Counsel for the Applicant:
Sri Prabha Shanker Mishra