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Failure To File Income Tax Return | Prosecution U/S 276CC IT Act Not Permissible Without Previous Sanction Of Appropriate Authority: Delhi High Court

Padmakshi Sharma

20 July 2022 12:40 PM GMT

    • Failure To File Income Tax Return | Prosecution U/S 276CC IT Act Not Permissible Without Previous Sanction Of Appropriate Authority: Delhi High Court

    The Delhi High Court has made it clear that a person cannot be prosecuted for the offence under Section 276-CC (Failure to furnish returns of income) of the Income Tax Act, except with the previous sanction of the Principal Commissioner/appropriate authority.A single judge bench of Justice Asha Menon held,"Since the law provides that without sanction u/s 278B of the IT Act, the Department...

    The Delhi High Court has made it clear that a person cannot be prosecuted for the offence under Section 276-CC (Failure to furnish returns of income) of the Income Tax Act, except with the previous sanction of the Principal Commissioner/appropriate authority.

    A single judge bench of Justice Asha Menon held,

    "Since the law provides that without sanction u/s 278B of the IT Act, the Department cannot proceed against a person found liable to prosecute him for the offence under Section 276 CC of the IT Act, the present prosecution must fail qua the petitioner. In the absence of a specific sanction for prosecuting the petitioner, the learned ACMM could not have taken cognizance of the complaint against him and then framed charge against him. The edifice built without foundation must crumble."

    The petitioner as well as the company M/s ASM Traxim Pvt Ltd. were booked for violation of Section 276-CC and Section 278-B of the Income Tax Act, 1961 by not filing ITR for assessment year 2012-13 in time. The petitioner sought quashing of the said complaint and all criminal proceedings arising therefrom, including the order passed by Magistrate framing charges.

    The Court noted that in the present case, the sanction referred to the Company M/s ASM Traxim Pvt. Ltd as the "assessee".

    Thus, the Court held that the sanction is specifically to institute a criminal complaint against the Company and not the petitioner, even as a "person" being a director/being responsible to the conduct of the business of the company.

    The petitioner had argued that before the petitioner could be treated as a Principal Officer, under Section 2(35)(b) of the IT Act, a prior notice had to be issued to him indicating that he would be treated as the Principal Officer of the Company.

    While the court agreed with this contention, it also noted that that under Section 278B, every "person" who at the time of the commission of the offence was in-charge of the company or responsible for the conduct of its business would be deemed to be guilty of the offence. This provision would cover the petitioner, it said.

    "Being a Director, there would be a presumption under Section 278B against him, when the ITR was not filed within time and the offence under Section 276 CC was committed. No doubt this presumption is rebuttable but that would be a matter of trial. Thus, even if for the sake of arguments, the contention urged on behalf of petitioner was to be accepted that he was not notified nor declared to be a Principal Officer by the Assessing Officer under Section 235-B, nevertheless, on that plea, he cannot avoid prosecution, other requirements being satisfied."

    The complaint was thus quashed and the petition was allowed. 

    CASE TITLE: VIPUL AGGARWAL v. INCOME TAX OFFICE

    Citation: 2022 LiveLaw (Del) 685

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    income tax actsanctionprosecutingcomplaintcognizancedelhi high court
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