The Delhi High Court has held that prosecution can be initiated even if assessment has not been completed in case of the taxpayer.

Taxpayers beware! Now you can be prosecuted for failing to file your income tax return on time as well as not responding to the income tax notice sent by the taxmen to you. And the prosecution can be initiated even if assessment has not been completed in case of the taxpayer.

The Delhi High Court has recently approved initiating prosecution proceedings, under Section 276CC of the Income Tax Act, 1961, against an individual taxpayer for not filing income tax return (ITR) and failing to respond to the tax notices sent to him. The prosecution proceedings were upheld despite the taxpayer submitting that there was no tax payable for the years under question, and in fact a refund was due to him in two of the years under question.

According to income tax experts, this approach could have serious bearing on taxpayers who may have missed filing their tax return, whatever be the reason for the default.

Facts of the case

In this case the individual taxpayer had failed to submit his tax return for 3 consecutive Assessment Years – 2003-04 to 2005-06 – within the time prescribed under the Income Tax Act. The tax officer initiated prosecution proceedings by way of filing criminal complaints on the taxpayer for failure to respond to notices issued under the Act. The taxpayer filed an application in the sessions court challenging the order framing prosecution charges, arguing that no tax was payable for the AYs in question and he was, in fact, entitled to a refund for AYs 2004-05 and 2005-06. The taxpayer submitted that his response to the show-cause notice to this effect was not properly construed, according to a Tax Alert by Grant Thornton.

In case of AY 2003-04, the taxpayer had submitted that the fresh notice issued in place of the original notice did not stipulate the specific time within which the compliance had to be completed. Therefore, he could not be held to be in breach of the statutory obligation and hence no prosecution should be initiated against him.

On appeal before the Revisional Court, the taxpayer’s contention that no tax was due for AY 2004-05 to 2005-06 was rejected. The Revisional Court relied on a Supreme Court decision wherein it was held that the offence stands committed for non-filing of return and is not related to the pendency of the assessment proceedings, except for the determination of time period of imprisonment.

Basis the SC decision, it was held that the prosecution charges be initiated against the taxpayer for AY 2004-05 and 2005-06 for non-filing of return irrespective of the fact that refund was claimed. The Revisional Court accepted the taxpayer’s contentions for AY 2003-04 regarding time not being stipulated in the fresh notice, and held that no prosecution should be initiated, the Tax Alert by GT says.

Aggrieved, the taxpayer and the Revenue filed petitions before the High Court.

HC’s observations and decision

Noting that failure to furnish the tax return within the time prescribed under the Act is a punishable offence, the High Court observed that the assessment proceedings are not related to criminal prosecutions. The assessment proceedings may eventually have a bearing for the benefit of the threshold provided under the Act for exclusion from prosecution proceedings, i.e., if the tax payable on the total income determined on regular assessment as reduced by the advance tax and tax deducted at source does not exceed Rs 3,000.

In case of AY 2003-04, the HC observed that the taxpayer failed to furnish the tax return and to respond the notices issued under the Act. The HC rejected the ground that no time was stipulated for the fresh notice, and held that the fresh notice issued cannot supersede the previous notice as it is not the intention of the law to allow an indefinite period for compliance of such notices.

The HC held that the prosecution for non-filing of return within prescribed time will be initiated irrespective of the fact that that taxpayer subsequently filed the tax return for AY 2003-04 on 24 October 2007.

In case of AYs 2004-05 and 2005-06, the HC opined that the Revisional Court took the correct view in directing initiating prosecution proceedings. In view of the above, the HC held that the prosecution proceedings will continue against the taxpayer, and directed the parties to appear in the trial court.

Tax Experts’ Views

Tax experts say that the judgement is not clear as to whether assessment proceedings were completed in the instant case or not.

The taxpayer argued that there is no tax payable in the said years and hence the benefit of de-minimis monetary threshold of the provision should be extended to it. The court held that the benefit of this provision can be extended only on completion of assessment proceedings.

The Delhi HC has held that prosecution can be initiated even if assessment has not been completed in case of the taxpayer, ie. default is triggered on non-filing of return itself. The HC has observed that assessment and prosecution proceedings can go simultaneously. “This approach, however, could have serious bearing on taxpayers who may have missed filing their tax return, whatever be the reason for the default. In case of prosecution proceedings, the taxpayer would be required to demonstrate that the default was not deliberate or willful, and there was no mens rea,” say experts.

Commenting on this case, Vikas Vasal, National Leader Tax – Grant Thornton India LLP, said, “While the Income-Tax Act contains stringent provisions related to prosecution for various non-compliance, the same have usually been invoked in cases where it is proved beyond reasonable doubt that the default is willful or deliberate; or where such a measure is necessary to protect the Revenue’s interests. In the recent past, however, the revenue authorities have been pressing for prosecution proceedings and the Courts have also been taking a relatively stricter view. It is, therefore, imperative that taxpayers are careful in meeting their compliance obligations within the due dates.”

This case, thus, highlights the importance of representation at the time of issue of a tax notice so that the chances of prosecution complaint being filed later are mitigated. The ruling also reflects the government’s focus on enforcing tax compliances, and reiterates the importance of meeting the compliances within the time prescribed under the Income Tax Act.