H. KAPADIA, CJI Leave granted.

A short question which arises for determination in this batch of cases is - whether interest under Section 234B can be charged on the tax calculated on book profits under Section 115JA? In other words, whether advance tax was at all payable on book profits under Section 115JA? The lead matter in this batch of cases is Joint CIT v. Rolta India Limited (Civil Appeal arising out of S.L.P. (C) Number 25746/09).

Assessee furnished a return of income on 28.11.1997 declaring total income of Rs. Nil.

On 28.3.2000, an order under Section 143(3) was passed determining the total income at nil after set off of unabsorbed business loss and depreciation.

The tax was levied on the book profit worked out at Rs. 1,52,61,834/- determined as per the provisions of Section 115JA.

The interest under Section 234B of Rs. 39,73,167/- was charged on the tax on the book profit as worked out in the order of assessment.

Aggrieved by the said order, the assessee went in appeal before CIT (A).

The appeal on the question in hand was dismissed.

On charging of interest under Section 234B the appeal was dismissed by the Tribunal on the ground that the case fell under Section 115JA and not under Section 115J, hence, judgment of the Karnataka High Court in the case of M s Kwality Biscuits Limited was not applicable.

At one stage the Bombay High Court decided the matter in favour of the Department but later on by way of review it took the view following the judgment of Karnataka High Court in the case of Kwality Biscuits Limited that interest under Section 234B cannot be charged on tax calculated on book profits, hence, the CIT has come to this Court by way of Civil Appeal(s).

We quote hereinbelow Sections 234B and 234C of the Income Tax Act, 1961 (in short the Act): Interest for defaults in payment of advance tax.

234B. (1) Subject to the other provisions of this section, where, in any financial year, an assessee who is liable to pay advance tax under section 208 has failed to pay such tax or, where the advance tax paid by such assessee under the provisions of section 210 is less than ninety per cent of the assessed tax, the assessee shall be liable to pay simple interest at the rate of one and one-half per cent for every month or part of a month comprised in the period from the 1st day of April next following such financial year to the date of determination of total income under sub-section (1) of section 143 and where a regular assessment is made, to the date of such regular assessment, on an amount equal to the assessed tax or, as the case may be, on the amount by which the advance tax paid as aforesaid falls short of the assessed tax.

Explanation 1.--In this section, assessed tax means,-- (a) for the purposes of computing the interest payable under section 140A, the tax on the total income as declared in the return referred to in that section (b) in any other case, the tax on the total income determined under sub-section (1) of section 143 or on regular assessment, as reduced by the amount of tax deducted or collected at source in accordance with the provisions of Chapter XVII on any income which is subject to such deduction or collection and which is taken into account in computing such total income.

Explanation 2.--Where, in relation to an assessment year, an assessment is made for the first time under section 147, the assessment so made shall be regarded as a regular assessment for the purposes of this section.

Explanation 3.--In Explanation 1 and in sub- section (3) tax on the total income determined under sub-section (1) of section 143 shall not include the additional income-tax, if any, payable under section 143.

Where, before the date of determination of total income under sub-section (1) of section 143 or completion of a regular assessment, tax is paid by the assessee under section 140A or otherwise,-- interest shall be calculated in accordance with the foregoing provisions of this section up to the date on which the tax is so paid, and reduced by the interest, if any, paid under section 140A towards the interest chargeable under this section thereafter, interest shall be calculated at the rate aforesaid on the amount by which the tax so paid together with the advance tax paid falls short of the assessed tax.

Where, as a result of an order of re- assessment or re-computation under section 147, the amount on which interest was payable under sub-section (1) is increased, the assessee shall be liable to pay simple interest at the rate of one and one-half per cent for every month or part of a month comprised in the period commencing on the day following the date of determination of total income under sub-section (1) of section 143 and where a regular assessment is made as is referred to in sub-section (1) following the date of such regular assessment and ending on the date of the re-assessment or re-computation under section 147, on the amount by which the tax on the total income determined on the basis of the re-assessment or re-computation exceeds the tax on the total income determined under sub-section (1) of section 143 or on the basis of the regular assessment aforesaid.

Where, as a result of an order under section 154 or section 155 or section 250 or section 254 or section 260 or section 262 or section 263 or section 264 or an order of the Settlement Commission under sub-section (4) of section 245D, the amount on which interest was payable under sub-section (1) or sub- section (3) has been increased or reduced, as the case may be, the interest shall be increased or reduced accordingly, and-- in a case where the interest is increased, the Assessing Officer shall serve on the assessee a notice of demand in the prescribed form specifying the sum payable and such notice of demand shall be deemed to be a notice under section 156 and the provisions of this Act shall apply accordingly in a case where the interest is reduced, the excess interest paid, if any, shall be refunded.

The provisions of this section shall apply in respect of assessments for the assessment year commencing on the 1st day of April, 1989 and subsequent assessment years.

Interest for deferment of advance tax.

234C. (1) Where in any financial year,-- (a) the company which is liable to pay advance tax under section 208 has failed to pay such tax or-- the advance tax paid by the company on its current income on or before the 15th day of June is less than fifteen per cent of the tax due on the returned income or the amount of such advance tax paid on or before the 15th day of September is less than forty-five per cent of the tax due on the returned income or the amount of such advance tax paid on or before the 15th day of December is less than seventy-five per cent of the tax due on the returned income, then, the company shall be liable to pay simple interest at the rate of one and one-half per cent per month for a period of three months on the amount of the shortfall from fifteen per cent or forty-five per cent or seventy-five per cent, as the case may be, of the tax due on the returned income the advance tax paid by the company on its current income on or before the 15th day of March is less than the tax due on the returned income, then, the company shall be liable to pay simple interest at the rate of one and one- half per cent on the amount of the shortfall from the tax due on the returned income: Provided that if the advance tax paid by the company on its current income on or before the 15th day of June or the 15th day of September, is not less than twelve per cent or, as the case may be, thirty-six per cent of the tax due on the returned income, then, it shall not be liable to pay any interest on the amount of the shortfall on those dates (b) the assessee, other than a company, who is liable to pay advance tax under section 208 has failed to pay such tax or,-- the advance tax paid by the assessee on his current income on or before the 15th day of September is less than thirty per cent of the tax due on the returned income or the amount of such advance tax paid on or before the 15th day of December is less than sixty per cent of the tax due on the returned income, then, the assessee shall be liable to pay simple interest at the rate of one and one-half per cent per month for a period of three months on the amount of the shortfall from thirty per cent or, as the case may be, sixty per cent of the tax due on the returned income the advance tax paid by the assessee on his current income on or before the 15th day of March is less than the tax due on the returned income, then, the assessee shall be liable to pay simple interest at the rate of one and one- half per cent on the amount of the shortfall from the tax due on the returned income: Provided that nothing contained in this sub- section shall apply to any shortfall in the payment of the tax due on the returned income where such shortfall is on account of under- estimate or failure to estimate-- (a) the amount of capital gains or (b) income of the nature referred to in sub- clause (ix) of clause (24) of section 2, and the assessee has paid the whole of the amount of tax payable in respect of income referred to in clause (a) or clause (b), as the case may be, had such income been a part of the total income, as part of the remaining instalments of advance tax which are due or where no such instalments are due, by the 31st day of March of the financial year: Explanation.--In this section, tax due on the returned income means the tax chargeable on the total income declared in the return of income furnished by the assessee for the assessment year commencing on the 1st day of April immediately following the financial year in which the advance tax is paid or payable, as reduced by the amount of tax deductible or collectible at source in accordance with the provisions of Chapter XVII on any income which is subject to such deduction or collection and which is taken into account in computing such total income.

At the outset, it may be stated that Sections 234B and 234C do not make any reference to Section 115J/115JA.

Section 234B lays down that where advance tax is required to be paid under Section 208 and there is a failure on that if the amount of advance tax paid under Section 210 is less than 90 of the assessed tax, then, in that case the assessee is liable to pay interest.

Section 234C refers to interest for deferment of advance tax.

It says that if the assessee has to pay advance tax on its current income on or before 15th of June and the tax paid is less than 15 of the tax due on the returned income or the amount of the advance tax paid on or before 15th of September is less than 45 of the tax due on the returned income or the amount of such advance tax paid on or before 15th of December is less than 75 of the tax due on the returned income, then the assessee shall be liable to pay interest at the specified rate on the amount of the shortfall from 15 or 45 or 75, as the case may be, of the tax due on the returned income.

In our view, Section 115J/115JA are special provisions.

Section 207 envisages that tax shall be payable in advance during any financial year on current income in accordance with the scheme provided in Sections 208 to 219 (both inclusive) in respect of the total income of the assessee that would be chargeable to tax for the assessment year immediately following that financial year.

Section 215(5) of the Act defined what is assessed tax, i.e., tax determined on the basis of regular assessment so far as such tax relates to income subject to advance tax.

The evaluation of the current income and the determination of the assessed income had to be made in terms of the statutory scheme comprising Section 115J/115JA of the Act.

Hence, levying of interest was inescapable.

The assessee was bound to pay advance tax under the said scheme of the Act.

Section 115J/115JA of the Act were special provisions which provided that where in the case of an assessee, the total income as computed under the Act in respect of any previous year relevant to the assessment year is less than 30 of the book profit, the total income of the assessee shall be deemed to be an amount equal to 30 of such book profit.

The object is to tax zero-tax companies.

Section 115J was inserted by Finance Act, 1987 w.e.f. 1.4.1988.

This section was in force from 1.4.1988 to 31.3.1991.

After 1.4.1991, Section 115JA was inserted by Finance Act of 1996 w.e.f.

After insertion of Section 115JA, Section 115JB was inserted by Finance Act, 2000 w.e.f. 1.4.2001.

It is clear from reading Sections 115JA and 115JB that the question whether a company which is liable to pay tax under either provision does not assume importance because specific provision(s) is made in the section saying that all other provisions of the Act shall apply to the MAT Company (Section 115JA(4) and Section 115JB(5)).

Similarly, amendments have been made in the relevant Finance Acts providing for payment of advance tax under Sections 115JA and 115JB.

So far as interest leviable under Section 234B is concerned, the section is clear that it applies to all companies.

The pre-requisite condition for applicability of Section 234B is that assessee is liable to pay tax under Section 208 and the expression assessed tax is defined to mean the tax on the total income determined under Section 143(1) or under Section 143(3) as reduced by the amount of tax deducted or collected at source.

Thus, there is no exclusion of Section 115J/115JA in the levy of interest under Section 234B. The expression assessed tax is defined to mean the tax assessed on regular assessment which means the tax determined on the application of Section 115J/115JA in the regular assessment.

The question which remains to be considered is whether the assessee, which is a MAT Company, was not in a position to estimate its profits of the current year prior to the end of the financial year on 31st March.

In this connection the assessee placed reliance on the judgment of the Karnataka High Court in the case of Kwality Biscuits Limited v. CIT reported in (2000) 243 ITR 519 and, according to the Karnataka High Court, the profit as computed under the Income Tax Act, 1961 had to be prepared and thereafter the book profit as contemplated under Section 115J of the Act had to be determined and then, the liability of the assessee to pay tax under Section 115J of the Act arose, only if the total income as computed under the provisions of the Act was less than 30 of the book profit.

According to the Karnataka High Court, this entire exercise of computing income or the book profits of the company could be done only at the end of the financial year and hence the provisions of Sections 207, 208, 209 and 210 (predecessors of Sections 234B and 234C) were not applicable until and unless the accounts stood audited and the balance sheet stood prepared, because till then even the assessee may not know whether the provisions of Section 115J would be applied or not.

The Court, therefore, held that the liability would arise only after the profit is determined in accordance with the provisions of the Companies Act, 1956 and, therefore, interest under Sections 234B and 234C is not leviable in cases where Section 115J applied.

This view of the Karnataka High Court in Kwality Biscuits Limited was not shared by the Gauhati High Court in Assam Bengal Carriers Limited v. CIT reported in (1999) 239 ITR 862 and Madhya Pradesh High Court in Itarsi Oil and Flours (P.) Limited v. CIT reported in (2001) 250 ITR 686 as also by the Bombay High Court in the case of CIT v. Kotak Mahindra Finance Limited reported in (2003) 130 TAXMAN 730 which decided the issue in favour of the Department and against the assessee.

It appears that none of the assessees challenged the decisions of the Gauhati High Court, Madhya Pradesh High Court as well as Bombay High Court in the Supreme Court.

However, it may be noted that the judgment of the Karnataka High Court in Kwality Biscuits Limited was confined to Section 115J of the Act.

The Order of the Supreme Court dismissing the Special Leave Petition in limine filed by the Department against Kwality Biscuits Limited is reported in (2006) 284 ITR 434.

Thus, the judgment of Karnataka High Court in Kwality Biscuits stood affirmed.

However, the Karnataka High Court has thereafter in the case of Jindal Thermal Power Company Limited v. Dy.

CIT reported in (2006) 154 TAXMAN 547 distinguished its own decision in case of Kwality Biscuits Limited (supra) and held that Section 115JB, with which we are concerned, is a self-contained code pertaining to MAT, which imposed liability for payment of advance tax on MAT companies and, therefore, where such companies defaulted in payment of advance tax in respect of tax payable under Section 115JB, it was liable to pay interest under Sections 234B and 234C of the Act.

Thus, it can be concluded that interest under Sections 234B and 234C shall be payable on failure to pay advance tax in respect of tax payable under Section 115JA/115JB.

For the aforestated reasons, Circular Number 13/2001 dated 9.11.2001 issued by CBDT reported in 252 ITR(St.)50 has no application.

Moreover, in any event, para 2 of that Circular itself indicates that a large number of companies liable to be taxed under MAT provisions of Section 115JB were not making advance tax payments.

In the said circular, it has been clarified that Section 115JB is a self-contained code and thus, all companies were liable for payment of advance tax under Section 115JB and consequently provisions of Sections 234B and 234C imposing interest on default in payment of advance tax were also applicable.

For the aforestated reasons CIT succeeds in the civil appeal arising out of S.L.P. (C) Number 25746 of 2009 (Jt.

CIT v. Rolta India Limited) as also in the civil appeal arising out of S.L.P. No. 18367 of 2010 (CIT-3 v. Export Credit Guarantee Corporation of India Limited).

Consequently, Civil Appeal Number 459 of 2006 (Nahar Exports v. CIT) and Civil Appeal Number 7429 of 2008 (Lakshmi Precision Screws Limited v. CIT) stand dismissed with no order as to costs.

CJI H. Kapadia) J. section Panicker Radhakrishnan) J. (Swatanter Kumar) New Delhi January 7, 2011

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Application for impleadment is allowed.

Delay condoned.

Leave granted.

This appeal by special leave is directed against the judgment and order passed by the High Court of Sikkim at Gangtok in Writ Petition(C) No.44 of 2009, dated 05.10.2010.

By the impugned judgment and order, the High Court has quashed the order of assessment passed by the Assistant CIT, Circle-I, Siliguri under Section 148 of the Income Tax Act, 1961 (for short the Act) dated 11.12.2009, whereby the assessing authority has confirmed the notices issued under Section 148 of the Act for the Assessment Years 1995-1996 and 1996-1997, respectively.

The facts in brief are: The assessee is a Sikkim based non-Sikkimese who had filed his first return of income for Assessment Year 1997-1998.

Upon assessment, it was discovered that he had a net profit of Rs.5,78,832/- during the Assessment Year 1996-1997 relevant to the Assessment Year 1995- 1996.

Since no return was filed by the assessee for the Assessment Year 1996-1997 despite capitalizing the aforesaid profit, proceedings under Section 147 of the Act were initiated against him for the said Assessment Year.

Accordingly, on 26.05.1998 the notice was issued under Section 148 of the Act.

Further, the Revenue has found out that as on 31.03.1996 the assessee had brought forward closing capital of Rs.1,73,90,397/- including the aforesaid net profit during the Assessment Year 1996-1997.

The same remained unexplained as the return of income for Assessment Year 1995-1996 was also not furnished by the assessee.

Hence, another notice under Section 148 was issued to the assessee for the Assessment Year 1995-1996, dated 30.03.2000.

It has come on record that the assessee did not comply with the aforesaid notices issued under Section 148 of the Act and thus, a letter dated 19.01.2001 came to be issued to the assessee as a reminder to file his return of income for the assessment years clearly mentioning that failure to do so would lead to an ex-parte assessment under Section 144 of the Act.

Thereafter, upon filing of written submissions by the assessee, notice under Section 142(1) of the Act dated 25.06.2001 was issued for the Assessment Year 1995-1996 alongwith final show cause fixing compliance for hearing dated 09.07.2001.

The assessee sought for an adjournment which was not granted and the assessments were completed ex-parte under Section 144 of the Act raising a tax demand of Rs.2,45,87,625/- and Rs.6,32,972/- for Assessment Years 1995-96 and 1996-97, respectively by orders dated 09.07.2001 and 28.03.2001, respectively.

Further, penalty proceedings under Section 271(1)(c) of the Act were also initiated for both Assessment Years.

The assessee approached the Writ Court in Writ Petition(c) Numbers 31 and 38 of 2001 challenging the aforesaid notices issued under Section 148, dated 26.05.1998 and 30.03.2000 and the subsequent assessment orders, dated 09.07.2001 and 28.03.2001.

The issue raised before the Writ Court was whether the income of the non-Sikkimese residing in Sikkim is taxable under the Act.

The said question was referred to a Committee for its consideration and the Writ Petition was disposed of as withdrawn with the direction to maintain status quo in the matter till the declaration of final decision by the Committee, by order dated 21.07.2005.

In the meanwhile, Section 10 (26AAA) of the Act was inserted by Section 4 of the Finance Act, 2008 whereby certain income accruing or arising to a Sikkimese individual was exempted from tax.

Thereafter, Central Board of Direct Taxes (for short the Board) issued Instruction Number 8 dated 29.07.2008 in respect of tax liability of the income accruing or arising to a non- Sikkimese individual residing in Sikkim.

In the light of the aforesaid amendment and instruction, the Writ Court by order dated 15.07.2009 reiterated the earlier order dated 21.07.2005 and granted liberty to parties to approach the Writ Court or any other competent authority forum for redressal of their grievances arising out of the matter.

It is in the aforesaid backdrop that the assessing authority has passed the assessment order against the assessee confirming the earlier notices issued for Assessment Years 1995-1996 and 1996-1997 respectively and held that the assessee is liable to pay the income tax as demanded by demand notice dated 11.12.2009.

Aggrieved by the aforesaid, the assessee instead of exhausting the statutory remedy available under the Act, i.e., statutory appeal before the Statutory Appellate Authority (Commissioner of Income Tax (Appeals)) has approached the High Court under Article 226 of the Constitution of India.

Suffice it is to notice here that the Writ Court has delved into the merits of the case and thought it fit to quash the order of the assessing authority dated 11.12.2009, by judgment and order dated 05.10.2010.

Being aggrieved by the aforesaid judgment and order of the Writ Court, the Revenue is before us in this appeal questioning the correctness or otherwise of the impugned judgment and order.

We have heard Shri Gaurab Banerjee, learned Additional Solicitor General appearing for the appellants and Shri Ganesh, learned Senior Counsel for the respondent.

Shri Gaurab Banerjee would submit that the Writ Court was not justified in entertaining the Writ Petition since the assessee has invoked its jurisdiction under Article 226 of the Constitution of India despite the availability of an equally efficacious alternate remedy under the Act and therefore, the Writ Court ought not to have interfered with the notices issued under Section 148 of the Act, the re-assessment order passed by the assessing authority and the consequential demand notices issued thereon.

Au contraire, Shri Ganesh would support the impugned judgment and order of the High Court.

We have considered the rival contentions made by the learned counsel for the parties to the lis.

In the instant case, the only question which arises for our consideration and decision is whether the High Court was justified in interfering with the order passed by the assessing authority under Section 148 of the Act in exercise of its jurisdiction under Article 226 when an equally efficacious alternate remedy was available to the assessee under the Act.

Before discussing the fact proposition, we would notice the principle of law as laid down by this Court.

It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation.

It is essentially a rule of policy, convenience and discretion rather than a rule of law.

Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy.

However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226.

(See: State of U.P. vs Mohammad Nooh, AIR 1958 SC 86 Titaghur Paper Mills Company Ltd. vs State of Orissa, (1983) 2 SCC 433 Harbanslal Sahnia vs Indian Oil Corpn.

Limited, (2003) 2 SCC 107 State of H.P. vs Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499).

The Constitution Benches of this Court in K.S. Rashid and Sons vs Income Tax Investigation Commission, AIR 1954 SC 207 Sangram Singh vs Election Tribunal, Kotah, AIR 1955 SC 425 Union of India vs T.R. Varma, AIR 1957 SC 882 State of U.P. vs Mohd. Nooh, AIR 1958 SC 86 and K.S. Venkataraman and Company (P) Limited vs State of Madras, AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character.

If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction.

The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted.

(See: N.T. Veluswami Thevar vs G. Raja Nainar, AIR 1959 SC 422 Municipal Council, Khurai vs Kamal Kumar, (1965) 2 SCR 653 Siliguri Municipality vs Amalendu Das, (1984) 2 SCC 436 S.T. Muthusami vs K. Natarajan, (1988) 1 SCC 572 Rajasthan SRTC vs Krishna Kant, (1995) 5 SCC 75 Kerala SEB vs Kurien E. Kalathil, (2000) 6 SCC 293 A. Venkatasubbiah Naidu vs section Chellappan, (2000) 7 SCC 695 L.L. Sudhakar Reddy vs State of A.P., (2001) 6 SCC 634 Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs State of Maharashtra, (2001) 8 SCC 509 Pratap Singh vs State of Haryana, (2002) 7 SCC 484 and GKN Driveshafts (India) Ltd. vs ITO, (2003) 1 SCC 72).

In Nivedita Sharma vs Cellular Operators Assn. of India, (2011) 14 SCC 337, this Court has held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows: In Thansingh Nathmal v. Supdt.

of Taxes, AIR 1964 SC 1419 this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7).

The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief.

Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.

In Titaghur Paper Mills Company Limited v. State of Orissa, (1983) 2 SCC 433 this Court observed: (SCC pp.

440-41, para 11) It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.

This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Company v. Hawkesford, 141 ER 486 in the following passage: (ER p. 495) There are three classes of cases in which a liability may be established founded upon a statute.

But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.

The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class.

The form given by the statute must be adopted and adhered to.

The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Limited, 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Company Limited, 1935 AC 532 (PC) and Secy.

of State v. Mask and Company, AIR 1940 PC 105 It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout.

The High Court was therefore justified in dismissing the writ petitions in limine.

In Mafatlal Industries Limited v. Union of India, (1997) 5 SCC 536 P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: (SCC p. 607, para 77) So far as the jurisdiction of the High Court under Article 226or for that matter, the jurisdiction of this Court under Article 32is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies.

It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.

(See: G. Veerappa Pillai v. Raman Raman Limited, AIR 1952 SC 192 CCE v. Dunlop India Limited, (1985) 1 SCC 260 Ramendra Kishore Biswas v. State of Tripura, (1999) 1 SCC 472 Shivgonda Anna Patil v. State of Maharashtra, (1999) 3 SCC 5 C.A. Abraham v. ITO, (1961) 2 SCR 765 Titaghur Paper Mills Co. Limited v. State of Orissa, (1983) 2 SCC 433 H.B. Gandhi v. Gopi Nath and Sons, 1992 Supp (2) SCC 312 Whirlpool Corpn.

v. Registrar of Trade Marks, (1998) 8 SCC 1 Tin Plate Company of India Limited v. State of Bihar, (1998) 8 SCC 272 Sheela Devi v. Jaspal Singh, (1999) 1 SCC 209 and Punjab National Bank O.C. Krishnan, (2001) 6 SCC 569) In Union of India vs Guwahati Carbon Limited, (2012) 11 SCC 651, this Court has reiterated the aforesaid principle and observed: Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee, Chheharta, (1979) 3 SCC 83.

In the said decision, this Court was pleased to observe that: (SCC p. 88, para 23).

when a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all the other forums and modes of seeking remedy are excluded.

Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field.

Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.

In the instant case, the Act provides complete machinery for the assessment re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals).

The remedy under the statute, however, must be effective and not a mere formality with no substantial relief.

In Ram and Shyam Company vs State of Haryana, (1985) 3 SCC 267 this Court has noticed that if an appeal is from Caesar to Caesars wife the existence of alternative remedy would be a mirage and an exercise in futility.

In the instant case, neither has the assessee-writ petitioner described the available alternate remedy under the Act as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of instant case.

In light of the same, we are of the considered opinion that the Writ Court ought not to have entertained the Writ Petition filed by the assessee, wherein he has only questioned the correctness or otherwise of the notices issued under Section 148 of the Act, the re-assessment orders passed and the consequential demand notices issued thereon.

In view of the above, we allow this appeal and set aside the judgment and order passed by the High Court in Writ Petition (Civil) Number44 of 2009.

We grant liberty to the respondent, if he so desires, to file an appropriate petition appeal against the orders of re-assessment passed under Section 148 of the Act within four weeks time from today.

If the petition is filed before the appellate authority within the time granted by this Court, the appellate authority shall consider the petition only on merits without any reference to the period of limitation.

However, it is clarified that the appellate authority shall not be influenced by any observation made by the High Court while disposing of the Writ Petition (Civil) Number44 of 2009, in its judgment and order dated 05.10.2010.

All the contentions of the parties are left open.

Ordered accordingly.

J. ( H. L. DATTU ) J. ( M. Y. EQBAL ) NEW DELHI AUGUST 08, 2013.

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section Radhakrishnan, J. We are concerned with four Criminal Appeals Number61 to 64 of 2007, out of which two Criminal Appeals Number61 of 2007 and 63 of 2007 relate to M s Sasi Enterprises, a registered partnership firm, of which Ms. Jayalalitha and Mrs. N. Sasikala are partners, which relate to the assessment years 1991-92 and 1992-93 respectively.

Criminal Appeal Nos.62 and 63 of 2007 relate to J. Jayalalitha and N. Sasikala respectively for the assessment years 1993-94.

Proceedings giving rise to these appeals originated from the complaints filed by the Assistant Commissioner of Income Tax, Chennai, before the Additional Chief Metropolitan Magistrate (Egmore), Chennai, for the willful and deliberate failure to file returns for the assessment years 1991-92, 1992-93 and hence committing offences punishable under Section 276 CC of the Income Tax Act, 1961 (for short the Act).

Complaints were filed on 21.8.1997 after getting the sanction from the Commissioner of Income Tax, Central II, Chennai under Section 279(1) of the Income Tax Act.

Appellants filed two discharge petitions under Section 245(2) Cr.

P.C., which were dismissed by the Chief Metropolitan Magistrate vide order dated 14.6.2006.

Appellants preferred Crl.

R.C. Numbers781 to 786 of 2006 before the High Court of Madras which were dismissed by the High Court vide its common order dated 2.12.2006, which are the subject matters of these appeals.

M s Sasikala Enterprises was formed as a partnership firm by a deed dated 06.02.1989 with N. Sasikala and T.V. Dinakaran as its partners, which was later reconstituted with effect from 04.05.1990 with J. Jayalalitha and N. Sasikala as partners.

The firm did the business through two units, namely, M s Fax Universal and M s J.S. Plan Printers, which, inter alia, included the business in running all kinds of motor cars, dealing in vehicles and goods etc.

In the complaint E.O.C.C. Number202 of 1997 filed before the Chief Metropolitan Magistrate, Egmore, M s Sasi Enterprises was shown as the first accused (A-1) and J. Jayalalitha and N. Sasikala were shown as (A-2) and (A-3) respectively, who were stated to be responsible for the day- to-day business of the firm during the assessment years in question and were individually, jointly and severally made responsible and liable for all the activities of the firm.

Partnership deed dated 04.05.1990 itself stated that the partners, A-2 and A-3 are responsible and empowered to operate bank accounts, have full and equal rights in the management of the firm in its business activities, deploy funds for the business of the firm, appoint staff, watchman etc.

and to represent the firm before income tax, sales tax and other authorities.

M s Sasi Enterprises, the firm, did not file any returns for the assessment year 1991-92 and 1992-93, for which the firm and its partners are being prosecuted under Section 276 CC of the Act.

J. Jayalalitha and N. Sasikala did not file returns for the assessment year 1993-94 and hence they are being prosecuted for that breach (in their individual capacity) separately but not for the assessment years 1991-92 or 1992-93 and their returns have been filed as individual assessee by them for the assessment years 1991-92 and 1992-93, though belatedly on 20.11.1994 and 23.02.1994 respectively.

In those returns it was mentioned that accounts of the firm had not been finalized and no returns of the firm had been filed.

The Assistant Commissioner of Income Tax in his complaint stated that the firm through its partners ought to have filed its returns under Section 139(1) of the Act for the assessment year 1991-92 on or before 31st August, 1991 and for the assessment year 1992-93 on or before 31st August, 1992 and A-2 in her individual capacity also should have filed her return for the year 1993-94 under Section 139(1) on or before 31.08.1993 and A-3 also ought to have filed her return for the assessment year 1993-94 on or before 31st August, 1993, as per Section 139(1) of the Act.

The accused persons, it was pointed out, did not bother to file the returns even before the end of the respective assessment years, nor had they filed any return at the outer statutory limit prescribed under Section 139(4) of the Act i.e. at the end of March of the assessment year.

It was also pointed out that a survey was conducted in respect of the firm under Section 133A on 25.08.1992 and following that a notice under Section 148 was served on the partnership firm on 15.2.1994 to file the return of income tax for the years in question.

Though notice was served on 16.2.1994, no return was filed within the time granted in the notice.

Neither return was filed, nor particulars of the income were furnished.

For the assessment year 1991-92, it was stated that pre-assessment notice was served on 18.12.1995, notice under Section 142(1)(ii) giving opportunities was also issued on 20.07.1995.

The department made the best judgment assessment for the assessment year 1991-92 under Section 144 on a total income of Rs.5,84,860/- on 08.02.1996 and tax was determined as Rs.3,02,434/- and demand notice for Rs.9,95,388/- was issued as tax and interest payable on 08.02.1996.

For the assessment year 1992-93, the best judgment assessment under Section 144 was made on 9.2.1996 on the firm on a total income of Rs.14,87,930/- and tax determined at Rs.8,08,153/-, a demand notice was issued towards the tax and interest payable.

We may indicate, so far as A-2 is concerned, the due date for filing of return of income as per Section 139(1) of the Act for the assessment year 1993-94 was 31.8.1993.

Notice under Section 142(1)(i) was issued to A-2 calling for return of income on 18.1.1994.

The said notice was served on her on 19.1.1994.

Reminders were issued on 10.2.1994, 22.8.1994 and 23.8.1995.

No return was filed as required under Section 139(4) before 31.3.1995.

The Department on 31.7.1995 issued notice under Section 142(1)(ii) calling for particulars of income and other details for completion of assessment.

Neither the return of income was filed nor the particulars of income were furnished.

Best judgment assessment under Section 144 was made on 9.2.1996 on a total income of Rs.1,04,49,153/- and tax determined at Rs.46,68,676/- and demand of Rs.96,98,801/-, inclusive of interest at Rs.55,53,882/- was raised after adjusting pre-paid tax of Rs.5,23,756/- .

The Department then issued show-cause notice for prosecution under Section 276CC on 14.6.1996.

Later, sanction for prosecution was accorded by the Commissioner of Income Tax on 3.10.1996.

A-3 also failed to file the return of income as per Section 139(1) for the assessment year 1993-94 before the due date i.e. 31.8.1993.

Notice under Section 142(1)(i) was issued to A-3 calling for filing of return of income on 8.11.1995.

Further, notice was also issued under Section 142(1)(ii) on 21.7.1995 calling for particulars of income and other details for completion of assessment.

Best judgment assessment under Section 144 was made on 8.2.1996 on a total income of Rs.70,28,110/- and tax determined at Rs.26,86,445/-.

The total tax payable, inclusive of interest due was Rs.71,19,527/-.

After giving effect to the appellate order, the total income was revised by Rs.19,25,000/-, resulting in tax demand of Rs.20,23,279/-, inclusive of interest levied.

Later, a show-cause notice for prosecution under Section 276CC was issued to A-3 on 7.8.1996.

A-3 filed replies on 24.11.1996 and 24.3.1997.

The Commissioner of Income Tax accorded sanction for prosecution on 4.8.1997.

We may incidentally also point out, the final tax liability so far as the firm is concerned, was determined as Rs.32,63,482/- on giving effect to the order of the Income Tax Appellate Tribunal (B Bench), Chennai dated 1.9.2006 and after giving credit of pre-paid tax for the assessment year 1991-92.

For the assessment year 1992-93 for the firm, final tax liability was determined at Rs.52,47,594/- on giving effect to the order of the Income Tax Appellate Tribunal (B Bench), Chennai dated 1.9.2006 and after giving credit of pre-paid tax.

So far as A-2 is concerned, for the assessment year 1993-94 final tax liability was determined at Rs.12,54,395/- giving effect to the order of Income Tax Appellate Tribunal (B Bench), Chennai dated 11.10.2008 after giving credit to pre-paid tax.

So far as A-3 is concerned, for the assessment year 1993-94, final tax liability was determined as Rs.9,81,870/- after giving effect to the order of Income Tax Appellate Tribunal (B Bench), Chennai dated 14.9.2004 and after giving credit to pre-paid tax.

We have already indicated, for not filing of returns and due to non-compliance of the various statutory provisions, prosecution was initiated under Section 276CC of the Act against all the accused persons and the complaints were filed on 21.08.1997 before the Chief Metropolitan Magistrate, which the High Court by the impugned order has permitted to go on.

Shri Shekhar Naphade, learned senior counsel appearing for the appellants, submitted that the High Court did not appreciate the scope of Section 276CC of the Act.

Learned senior counsel pointed out that once it is established that on the date of the complaint i.e. on 21.08.1997 the assessment had not attained finality, the complaint became pre-mature as on the date of the complaint and no offence had taken place and all the ingredients of offence under Section 276 of the Act were not satisfied.

Learned senior counsel pointed out that unless and until it is shown that failure to file the return was willful or deliberate, no prosecution under Section 276CC could be initiated.

Learned senior counsel pointed out that in fact, the second accused in her individual return had disclosed that the firm was doing the business and that it had some income and hence, it cannot be said that A-2 had concealed the fact that the firm had any intention to evade tax liability.

Learned senior counsel also submitted that whether the assessee had committed any offence or not will depend upon the final assessment of income and tax liability determined by the appropriate authority and not on the assessment made by the assessing officer.

Placing reliance on the proviso to Section 276CC learned senior counsel submitted that, that is the only interpretation that could be given to Section 276CC.

In support of his contention reliance was placed on the Judgment of this Court in Commissioner of Wealth Tax, Gujarat v. Vimlaben Vadilal Mehta (Smt.) (1983) 4 SCC 692, Commissioner of Wealth Tax, Gujarat, Ahmedabad v. Vadilal Lallubhai Ors.

(1983) 4 SCC 697 and State of H.P. and others Gujarat Ambuja Cement Limited and another (2005) 6 SCC 499.

Referring to Section 278E of the Act, learned senior counsel submitted that till the assessment does not attain finality, Section 276CC is not complete and the presumption under Section 278E is not attracted.

Learned senior counsel also submitted that the High Court has wrongly applied the principles laid down by this Court in Prakash Nath Khanna and another v. Commissioner of Income Tax and another (2004) 9 SCC 686, in any view, which calls for reconsideration.

Learned senior counsel submitted that the said Judgment deals with the factum of proviso to Section 276CC of the Act which lays down that there is no offence if the tax amount does not exceed Rs.3,000/-.

Shri Sidharth Luthra, learned Additional Solicitor General of India, appearing for the Revenue, on the other hand, submitted that Section 139 of the Act placed a statutory mandate on every person to file an income tax return in the prescribed form and in the prescribed manner before the due date i.e. 31st August of the relevant assessment year.

Learned ASG submitted that on breach of Section 139(1) of the Act, cause of action to prosecute the assessee arises subject to other ingredients of Section 276CC of the Act.

Learned ASG pointed out that what is relevant in the proceedings, is not only the due date prescribed in Section 139(1) of the Act, but also time prescribed under Section 142 and 148 of the Act, by which further opportunities have been given to file the return in the prescribed time.

In other words, Section 276CC, according to the learned ASG, applies to a situation where assessee has failed to file the return of income as required under Section 139 of the Act or in response to notices issued to the assessee under Section 142 or Section 148 of the Act.

Learned ASG also submitted that the scope of proviso to Section 276CC to protect the genuine assessees who either file their return belatedly but within the end of the assessment year or those who paid substantial amount of their tax dues by pre-paid taxes.

Considerable reliance was placed on the Judgment of this Court in Prakash Nath Khanna and another (supra).

Reliance was also placed on the Judgment of this Court in Maya Rani Punj (Smt.) v. Commissioner of Income Tax, Delhi (1986) 1 SCC 445.

Learned ASG also explained the scope of Section 278E by placing reliance on P.R. Metrani v. Commissioner of Income Tax, Bangalore (2007) 1 SCC 789, Kumar Exports v. Sharma Carpets (2009) 2 SCC 513, and submitted that pendency of the appellate proceedings is not a relevant factor in relation to prosecution under Section 276CC.

Reference was also made to Ravinder Singh v. State of Haryana (1975) 3 SCC 742 and Standard Chartered Bank and others v. Directorate of Enforcement and others (2006) 4 SCC 278.

Learned ASG submitted that the Judgment in Prakash Nath Khanna (supra) calls for no reconsideration, as the same has been uniformly applied by this Court as well as by the various High Courts.

Learned ASG also pointed out that the appellants have been indulging in litigative exercises by which they could hold up the proceedings for almost two decades and that the trial court has rightly rejected the application for discharge, which was affirmed by the High Court and the same calls no interference by this Court.

We may formulate the questions that arise for our consideration, which are as under: Whether an assessee has the liability duty to file a return under Section 139(1) of the Act within the due date prescribed therein? What is the effect of best judgment assessment under Section 144 of the Act and will it nullify the liability of the assessee to file its return under Section 139(1) of the Act? Whether non-filing of return under Section 139(1) of the Act, as well as non-compliance of the time prescribed under Sections 142 and 148 of the Act are grounds for invocation of the provisions of Section 276CC of the Act? Whether the pendency of the appellate proceedings relating to assessment or non-attaining finality of the assessment proceedings is a bar in initiating prosecution proceedings under Section 276CC due to non-filing of returns? What is the scope of Section 278E of the Act, and at what stage the presumption can be drawn by the Court? We may, at the outset, point out that the appellants had earlier approached this Court and filed SLP(C) Numbers3655-3658 of 2005 which were disposed of by this Court directing the trial court to dispose of the petition for discharge within a period of two months by its order dated 03.03.2006.

Learned Chief Metropolitan Magistrate rejected the petitions vide its order dated 14.06.2006.

Though the High Court affirmed the said order vide its judgment dated 02.12.2006, these appeals were kept pending before this Court over six years for one reason or another.

We are, in these appeals, concerned with the question of non- filing of returns by the appellants for the assessment year 1991-92, 1992-93 and 1993-94.

Each and every order passed by the revenue as well as by the Courts were taken up before the higher courts, either through appeals, revisions or writ petitions.

The details of the various proceedings in respect of these appeals are given in paragraph 30 of the written submissions filed by the revenue, which reveals the dilatory tactics adopted in these cases.

Courts, we caution, be guarded against those persons who prefer to see it as a medium for stalling all legal processes.

We do not propose to delve into those issues further since at this stage we are concerned with answering the questions which have been framed by us.

Section 139 of the Act prior to 1989-90 and after, placed a statutory mandate on every person to file an income tax return in the prescribed form and in the prescribed manner.

The Direct Tax Laws (Amendment) Act, 1987 with effect from 01.04.1989 made various amendments to the Income Tax Act, by which the assessing officer has no power to extend the time for filing a return of income under Section 139(1) and to extend the time for filing under Section 139(3), a return of loss intended to be carried forward.

The time prescribed for filing a belated return under Section 139(4) or a revised return under Section 139(5) was reduced to one year from the end of the relevant assessment year.

The provision of Section 139(2) stood incorporated in Section 142(1)(i).

The notice under Section 142(1)(i) to furnish a return of income cannot be issued in the course of the assessment year itself and need not give the person concerned a minimum period of 30 days for furnishing the return.

When a return is furnished pursuant to a notice under Section 142(1)(i), the assessment may be made under Section 143 without recourse to Section 147.

Further, with the deletion of Section 271(1)(a), a penalty for failure to furnish in due time a return of income under Section 139(1), is abolished.

Levy of punitive interest under Section 234A made mandatory and the discretion of the assessing officer to reduce or waive the interest was taken away.

Non-compliance with a notice under Section 142(1)(i) may attract prosecution under Section 276CC.

The Income Tax Act, therefore, had stipulated both the penalty under Section 271(1)(a) and prosecution under Section 276CC, the former for depriving taxes due to the exchequer and later for the offence infraction committed.

As already indicated by the Taxation Laws (Amendment) Act, 1989, penalty provision under Section 271(1)(a) had been deleted w.e.f. 01.04.1989 and a provision for levy of mandatory compulsory interest under Section 234A of the Act was introduced.

But, legislature has never waived or relaxed its prosecuting provisions under Section 276CC of the Act for the infraction or non-furnishing of return of income.

Section 139 of the Act, as it stood at the relevant time, reads as under: 139.

(1) Every person, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income-tax, shall, on or before the due date, furnish a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed.

Explanation: In this sub-section, due date means- (a) where the assessee is a company, the 30th day of November of the assessment year (b) where the assessee is a person, other than a company.- in a case where the accounts of the assessee are required under this Act or nay other law to be audited, or where the report of any accountant is required to be furnished under section 80HHC or Section 80HHD or in the case of a co-operative society, the 31st day of October of the assessment year: in a case where the total income referred to in this sub- section includes any income from business or profession, not being a case falling under sub-clause (i), the 31st day of August of the assessment year : in any other case, the 30th day of June of the assessment year.

xxx xxx xxx xxx xxx xxx If any person who has sustained a loss in any previous year under the head Profits and gains of business or profession or under the head Capital gains and claims that the loss or any part thereof should be carried forward under sub-section (1) of section 72, or sub-section (2) of section 73, or sub-section (1) or sub-section (3) of section 74, or sub-section (3) of section 74A, he may furnish, within the time allowed under sub-section (1), a return of loss in the prescribed form and verified in the prescribed manner and containing such other particulars as may be prescribed, and all the provisions of this Act shall apply as if it were a return under sub-section (1).

Any person who has not furnished a return within the time allowed to him under sub-section (1), or within the time allowed under a notice issued under sub-section (1) of section 142, may furnish the return for any previous year at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier: xxx xxx xxx xxx xxx xxx A plain reading of the above provisions indicates that it is mandatory on the part of the assessee to file the return before the due date.

Explanation (a) to the said section defines the term due date, which is 30th November of the assessment year.

The consequence of non-filing of return on time has also been stipulated in the Act.

Further a reference to Sections 142 and 148 is also necessary to properly understand the scope of Section 276CC.

Relevant portion of Section 142, as it stood at the relevant time, is quoted below: Inquiry before assessment.- (1) For the purpose of making an assessment under this Act, the Assessing Officer may serve on any person who has made a return under section 139 or in whose case the time allowed under sub- section (1) of that section for furnishing the return has expired a notice requiring him, on a date to be therein specified,- where such person has not made a return within the time allowed under sub-section (1) of section 139, to furnish a return of his income or the income of any other person in respect of which he is assessable under this Act, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed, or xxx xxx xxx xxx xxx xxx Section 148 refers to the issue of notice where income has escaped assessment.

Relevant portion of the same is also extracted hereinbelow for ready reference: 148.

(1) Before making the assessment, reassessment or recomputation under section 147, the Assessing Officer shall serve on the assessee a notice requiring him to furnish within such period, not being less than thirty days, as may be specified in the notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139.

The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so.

Sub-section (1) of Section 139, clause (i) sub-section (1) of Section 142 and Section 148 are mentioned in Section 276CC of the Act.

Section 276CC is extracted as under: 276CC.

Failure to furnish returns of income.

If a person wilfully fails to furnish in due time the return of income which he is required to furnish under sub-section (1) of section 139 or by notice given under clause (i) of sub-section (1) of section 142 or section 148, he shall be punishable,- in a case where the amount of tax, which would have been evaded if the failure had not been discovered, exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine in any other case, with imprisonment for a term which shall not be less than three months but which may extend to three years and with fine: Provided that a person shall not be proceeded against under this section for failure to furnish in due time the return of income under sub-section (1) of section 139- for any assessment year commencing prior to the 1st day of April, 1975 or for any assessment year commencing on or after the 1st day of April, 1975 , if- (a) the return is furnished by him before the expiry of the assessment year or (b) the tax payable by him on the total income determined on regular assessment, as reduced by the advance tax, if any, paid, and any tax deducted at source, does not exceed three thousand rupees.

The constitutional validity of Section 276CC, was upheld by the Karnataka High Court in Sonarome Chemicals Pvt.

Limited and others v. Union of India and others (2000) 242 ITR 39 (Kar) holding that it does not violate Article 14 of 21 of the Constitution.

Section punishes the person who willfully fails to furnish the return of income in time.

The explanation willful default, as observed by Wilber Force J. in Wellington v. Reynold (1962) 40 TC 209 is some deliberate or intentional failure to do what the tax payer ought to have done, knowing that to omit to do so was wrong.

The assessee is bound to file the return under Section 139(1) of the Act on or before the due date.

The outer limit is fixed for filing of return as 31st August of the assessment year, over and above, in the present case, not only return was not filed within the due date prescribed under Section 139(1) of the Act, but also the time prescribed under Section 142 and 148 of the Act and the further opportunity given to file the return in the prescribed time was also not availed of.

Section 276CC applies to situations where an assessee has failed to file a return of income as required under Section 139 of the Act or in response to notices issued to the assessee under Section 142 or Section 148 of the Act.

The proviso to Section 276CC gives some relief to genuine assesses.

The proviso to Section 276CC gives further time till the end of the assessment year to furnish return to avoid prosecution.

In other words, even though the due date would be 31st August of the assessment year 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.

Similarly, the proviso in clause ii(b) to Section 276CC also provides that if the tax payable determined by regular assessment has reduced by advance tax paid and tax deducted at source does not exceed Rs.3,000/-, such an assessee shall not be prosecuted for not furnishing the return under Section 139(1) of the Act.

Resultantly, the proviso under Section 276CC takes care of genuine assesses who either file the returns belatedly but within the end of the assessment year 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.

Section 276CC, it may be noted, takes in sub-section (1) of Section 139, Section 142(1)(i) and Section 148.

But, the proviso to Section 276CC takes in only sub-section (1) of Section 139 of the Act and the provisions of Section 142(1)(i) or 148 are conspicuously absent.

Consequently, the benefit of proviso is available only to voluntary filing of return as required under Section 139(1) of the Act.

In other words, the 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.

Proviso, therefore, envisages the filing of even belated return before the detection or discovery of the failure and issuance of notices under Section 142 or 148 of the Act.

We may in this respect also refer to sub-section (4) to Section 139 wherein the legislature has used an expression whichever is earlier.

Both Section 139(1) and Sub-Section (1) of Section 142 are referred to in sub-section (4) to Section 139, which specify time limit.

Therefore, the expression whichever is earlier has to be read with the time if allowed under sub-section (1) to Section 139 or within the time allowed under notice issued under sub-section (1) of Section 142, whichever is earlier.

So far as the present case is concerned, it is already noticed that the assessee had not filed the return either within the time allowed under sub-section (1) to Section 139 or within the time allowed under notices issued under sub-section (1) to Section 142.

We have indicated that on failure to file the returns by the appellants, income tax department made a best judgment assessment under Section 144 of the Act and later show cause notices were issued for initiating prosecution under Section 276CC of the Act.

Proviso to Section 276CC nowhere states that the offence under Section 276CC has not been committed by the categories of assesses who fall within the scope of that proviso, but it is stated that such a person shall not be proceeded against.

In other words, it only provides that under specific circumstances subject to the proviso, prosecution may not be initiated.

An assessee who comes within clause 2(b) to the proviso, no doubt has also committed the offence under Section 276CC, but is exempted from prosecution since the tax falls below Rs.3,000/-.

Such an assessee may file belated return before the detection and avail the benefit of the proviso.

Proviso cannot control the main section, it only confers some benefit to certain categories of assesses.

In short, the offence under Section 276CC is attracted on failure to comply with the provisions of Section 139(1) or failure to respond to the notice issued under Section 142 or Section 148 of the Act within the time limit specified therein.

We may indicate that the above reasoning has the support of the Judgment of this Court in Prakash Nath Khanna (supra).

When we apply the above principles to the facts of the case in hand, the contention of the learned senior counsel for the appellant that there has not been any willful failure to file their return cannot be accepted and on facts, offence under Section 276CC of the Act has been made out in all these appeals and the rejection of the application for the discharge calls for no interference by this Court.

We also find no basis in the contention of the learned senior counsel for the appellant that pendency of the appellate proceedings is a relevant factor for not initiating prosecution proceedings under Section 276CC of the Act.

Section 276CC contemplates that an offence is committed on the non-filing of the return and it is totally unrelated to the pendency of assessment proceedings except for second part of the offence for determination of the sentence of the offence, the department may resort to best judgment assessment or otherwise to past years to determine the extent of the breach.

The language of Section 276CC, in our view, is clear so also the legislative intention.

It is trite law that as already held by this Court in B. Permanand v. Mohan Koikal (2011) 4 SCC 266 that the language employed in a statute is the determinative factor of the legislative intent.

It is well settled principle of law that a court cannot read anything into a statutory provision which is plain and unambiguous.

If it was the intention of the legislature to hold up the prosecution proceedings till the assessment proceedings are completed by way of appeal or otherwise the same would have been provided in Section 276CC itself.

Therefore, the contention of the learned senior counsel for the appellant that no prosecution could be initiated till the culmination of assessment proceedings, especially in a case where the appellant had not filed the return as per Section 139(1) of the Act or following the notices issued under Section 142 or Section 148 does not arise.

We are also of the view that the 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.

The firm is independently required to file the return and merely because there has been a best judgment assessment under Section 144 would not nullify the liability of the firm to file the return as per Section 139(1) of the Act.

Appellants contention that since they had in their individual returns indicated that the firms accounts had not been finalized, hence no returns were filed, would mean that failure to file return was not willful, cannot be accepted.

Section 278E deals with the presumption as to culpable mental state, which was inserted by the Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1986.

The question is on whom the burden lies, either on the prosecution or the assessee, under Section 278E to prove whether the assessee has or has not committed willful default in filing the returns.

Court in a prosecution of offence, like Section 276CC has to presume the existence of mens rea and it is for the accused to prove the contrary and that too beyond reasonable doubt.

Resultantly, the appellants have to prove the circumstances which prevented them from filing the returns as per Section 139(1) or in response to notices under Sections 142 and 148 of the Act.

We, therefore, find no reason to interfere with the order passed by the High Court.

The appeals, therefore, lack merits and the same are dismissed and the Criminal Court is directed to complete the trial within four months from the date of receipt of this Judgment.

.J. section Radhakrishnan) .J. K. Sikri) New Delhi, January 30, 2014.

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