JUDGMENT
M. Karpagavinayagam, J.
1. These applications have been filed for quashing the proceedings in E. O. C. C. Nos. 346 of 1993, 347 of 1993, 348 of 1993, 349 of 1993, 65 of 1992, 66 of 1992, 350 of 1993, 351 of 1993 and 353 of 1993 respectively on the file of the Additional Chief Metropolitan Magistrate, Economic Offence II, Egmore, Chennai.
2. The only ground by learned counsel for the petitioner in these applications is that there is no delay in the filing of the returns and as soon as he was served with notice under Section 148 of the Income-tax Act, 1961, on March 21, 1990, he immediately filed the same on March 30, 1990, without any delay and as such, the prosecution cannot be maintained.
3. Mr. Ramaswamy, learned income-tax counsel appearing for the respondent, would represent that the petitioner had earlier filed a similar application before this court and the same was dismissed on March 17, 1995 (A.Y. Prabhakar (HUF) v. Asst. CIT [1996] 217 ITR 253) and in that order, the petitioner was given liberty to raise the question whether non-filing of the return within the prescribed time is wilful or deliberate, before the trial court.
4. It is also observed in the said order that it would be for the defence to prove that there was no such a mental state and that the question could not be gone into in the proceedings under Section 482 of the Code of Criminal Procedure. The said case has been reported in A.Y. Prabhakar (HUF) v. Asst. CIT [1996] 217 ITR 253. Without doing so, the petitioner has approached this court by filing the fresh applications raising the very same point inclusive of the point with reference to the notice under Section 148(1).
5. As correctly pointed out by Mr. Ramaswamy, it is stated in paragraph 11 of the complaint that the prosecution was not in respect of the non-compliance of Section 148(1) notice but in respect of the fact that the accused wilfully failed to furnish in due time the return of income which he is required to furnish under Sub-section (1) of Section 139. Therefore, it cannot be contended that the prosecution is not maintainable, inasmuch as the returns have been filed after a delay of 123 months.
6. Whether it is a delay or not or the said delay is wilful or not is a matter to be gone into by the trial court during the time of trial. Therefore, the petitioner is at liberty to raise all the points before the trial court at the appropriate stage.
7. At this stage, the counsel for the petitioner would submit that the petitioner is an aged man and man of sick. Under those circumstances, the petitioner is at liberty to file an application to dispense with his appearance before the trial court.
8. It is also contended by counsel for the petitioner that the penalty proceedings and interest proceedings, all ended in his favour. This submission, in my view, does not merit acceptance because the result of the penalty proceedings and interest proceedings would not cause any impact on the prosecution, as laid down in Universal Supply Corporation v. State of Rajasthan , and especially when the prosecution alleges that returns have been filed only after long delay of 123 months. Therefore, the petitions are dismissed. Consequently, Crl. M. P. Nos. 9544 to 9553 of 1998 are also dismissed.
