JUDGMENT
P.K. Bahri, J.
1. I proceed to decide these eight criminal revision petitions by this order as common questions of fact and law are involved in all these petitions.
2. Four complaints against Jagat Singh, petitioner, in four criminal revision petitions and four complaints against Jai Singh, petitioner, in the other four criminal revision petitions, have been brought by the Wealth-tax Officer for their prosecution for offences punishable under section 35B of the Wealth-tax Act, 1957, pertaining to their willfully not filing wealth-tax returns in due time for different assessment years. I will give the facts of one of such complaints as the facts are similar in other complaints. It has been mentioned in the complaint that the accused had failed to file his return of net wealth as required under section 14(1) of the Wealth-tax Act (for short “the Act”) in respect of the particular assessment year and the Wealth-tax Officer had issued a notice under section 14(2) of the Act to the accused requiring him to file the return within 35 days of the receipt of the notice but despite the fact that the notice was duly served, the accused failed to comply with the same and an application of the accused seeking extension of time for filing of the return was rejected by the Wealth-tax Officer. Then, the facts have been given with regard to the net taxable wealth of the accused and the assessment made in that respect which was Rs. 3,03,09,870. The petitioners, having been summoned to face prosecution in the aforesaid complaints, have chosen to file these criminal revision petitions for quashment of the complaints. The complaints pertain to four assessment years, viz., 1975-76, 1976-77, 1977-78 and 1978-79. It is an admitted fact that the wealth-tax returns were filed by these petitioners before the completion of the assessment proceedings for the said assessment years and necessary assessment orders had been made on March 19, 1980, and directions had been also given for initiating penalty proceedings under sections 18(1)(a), 18(1)(c) and section 35B of the Act but, in fact, I am told that no such penalty proceedings have been initiated or any penalties imposed on these petitioners.
3. Learned counsel for the petitioners, Mr. Lalit Bhasin, has made the following submissions in support of the aforesaid petitions, firstly, that the wealth-tax returns, having been filed by the petitioners before the completion of the assessment proceedings for the assessment years in consonance with section 15 of the Act, the inference should be drawn that as valid returns had been filed there was no willful default by the petitioners so as to attract the penal provisions of section 35B of the Act. He has urged that the words “due time” appearing in section 35B of the Act should be construed to mean the time permitted by section 15 of the Act for filing the said returns. Secondly, he has argued that although penalty proceedings have been directed to be initiated but, in fact, no such penalty proceedings were brought or penalties imposed, the penal provisions of section 35B of the Act cannot be invoked. Thirdly, he has argued that there has been no willful default on the part of the petitioners inasmuch as their explanations for not filing the wealth-tax returns in due time are of the same nature as had been accepted by the income-tax authorities while condoning the delay in filing the income-tax returns and the penalties imposed for late filing of the income-tax returns had been cancelled by the Appellate Tribunal. Thus, for parity of reasons, such explanations should have been accepted for condoning the delay made by the petitioners, if any, in filing the wealth-tax returns. He has also argued that as the authorities could have levied interest on the delayed payments and could have imposed penalties under the Act, it was not a case of any evasion of tax on the wealth of the petitioners and thus prosecution of the petitioners under section 35B was ill-conceived. Lastly, he has argued that the petitioners were wealth-tax assesseds known to the authorities and there could not be any willful default on their part in not filing the wealth-tax returns in due time.
4. Learned counsel for the respondent, Mr. Sat Pal, on the other hand, has argued that the wealth-tax returns having been not filed within the time prescribed in section 14(1) and section 14(2) and keeping in view the proviso to section 35B(ii) of the Act, the petitioners prima facie willfully failed to file the wealth-tax returns in due time. He has argued that section 15 cannot be resorted to by the petitioners in order to escape their penal liability which they incurred by not filing the wealth-tax returns within the time prescribed in section 14(1) and section 14(2) of the Act. He has contended that filing of the returns in consonance with section 15 of the Act before the completion of the assessment only enables the petitioners to have the advantage of the assessment being made on the basis of the said returns but the same does not have the effect of wiping out the penal liability incurred by the petitioners. He has argued that, if the contention of the petitioners is accepted, then the provision of section 35B, proviso to sub-clause (ii), would become redundant. He has also pointed that initiation of penalty proceedings or non-imposition of penalties has nothing to do with the penal liability incurred by the petitioners. He has argued that both types of actions could be taken against the petitioners for their deliberately not filing the wealth-tax returns in due time and even if no penalty proceedings have been taken against the petitioners, there is no legal bar to prosecuting the petitioners for the offences committed by them under section 35B of the Act. He has argued that there has been a delay of about five years or so in filing the wealth-tax returns and that, on the face of it, it would show that there has been willful default made by the petitioners in that connection and the mere fact that, in income-tax matters, the penalty had been cancelled condoning the delay of 20 to 25 months in filing the income-tax returns does not absolve the petitioners from the criminal liability incurred by them by virtue of section 35B of the Act. He has argued that, on the face of it, by not filing the wealth-tax returns in due time, the petitioners have tried to evade the payment of substantial tax and the mere fact that they are previously assessed to wealth-tax is no ground to hold that they have not willfully avoided filing the wealth-tax returns for the assessment years in question in time.
5. Dealing with the first point, it is necessary to refer to the relevant provisions of the Act in order to appreciate the point whether the wealth-tax returns filed in consonance with section 15 would be enough to hold that the returns had been filed in due time as contemplated by section 35B of the Act.
6. Section 14(1) of the Act requires every person to file his wealth-tax return on or before June 30 of the corresponding assessment year. Section 14(2) authorises the Assessing Officer to serve a notice on any person if, according to his opinion, he is assessable under this Act, to file the wealth-tax return within a specified period of not less than 30 days. Section 15 of the Act reads as follows :
“If any person has not furnished a return within the time allowed under section 14, or having furnished a return under that section discovers any omission or a wrong statement therein, he may furnish a return or a revised return, as the case may be, at any time before the assessment is made.”
7. Section 35B lays down that if a person willfully fails to furnish in due time the return of his net wealth which he is required to furnish under sub-section (1) of section 14 or by notice given under sub-section (2) of section 14… shall be punishable… provided that a person shall not be proceeded against under this section for failure to furnish in due time the return of net wealth under sub-section (1) of section 14… (ii) 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.
8. A perusal of the aforesaid provisions of the statute makes it very clear that in case of the return is not willfully filed within the due time, the person would be deemed to have committed the offence under section 35B but in case the return is furnished by him before the expiry of the assessment year, then such a person would not be proceeded against under this section for failure to furnish the return in due time fixed in sub-section (1) of section 14 of the Act. Section 15 contains an enabling provision by virtue of which if a return is filed before the assessment is made, the said return has to be taken into consideration for purposes of making an assessment. The said return is valid only for that purpose and the ingredients of section 35B for constituting an offence stand fulfillled as soon as it is proved that a person has willfully failed to furnish the return within the time prescribed in section 14(1) or section 14(2) and that offence would not be taken notice of if the return is filed before the expiry of the relevant assessment year. If the contention is accepted that criminal liability is not incurred by a defaulting assessed if he manages to file the necessary return at any time before the assessment is made, the provisions of section 35B, proviso (ii), would become nugatory. No such interpretation could be given which would make a particular provision of the statute as nugatory. (See Third ITO v. M Damodar Bhat, ).
9. Counsel for the petitioners has cited CIT v. Kulu Valley Transport Co. P. Ltd. in support of his contention that, if the return is filed in consonance with section 15 of the Act, the said return is a valid return. There are similar provisions in the Income-tax Act and the same came up for consideration in the aforesaid case before the Hon’ble Supreme Court. The short question which arose for decision before the Supreme Court was whether the loss which had been determined and carried forward under section 24(2) of the Indian Income-tax Act, 1922, could be taken into consideration while making the assessment though the income-tax returns has not been filed within the time specified under section 22(1). According to the provisions of the Income-tax Act, despite the fact that there is a time prescribed for filing the return under section 22(1) of the Income-tax Act, still, like section 15 of the Wealth-tax Act, there is a provision under section 22(3) of the Income-tax Act which enables the assessed to file the income-tax return at any time before the assessment is made. A contention was raised before the Hon’ble Supreme Court that such a return which is not filed in due time given under section 22(1) of the Income-tax Act cannot at all be taken note of while making the assessment. This contention was negatived and it was held that section 22(3) provided that if any person had not furnished a return within the time allowed by or under sub-section (1) or sub-section (2) or having furnished a return under either of those sub-sections discovers any omission or wrong statement therein, he could furnish a return or a revised return at any time before the assessment was made. Thus, the scheme of section 22 is that a public or general notice is to be given every year by the Income-tax Officer or he could even give an individual or special notice but if a person has not furnished the return within the time allowed, he could furnish the return at any time before the assessment is made and it is well settled by now that a return can always be filed at any time before the assessment is made and the Income-tax Officer has to make the assessment on that return and he could not choose to ignore it. Then, referring to section 24(2) of the Income-tax Act, it was held that, under this provision, the assessed must submit his return regarding loss in order to take advantage of the same and it was held that a return submitted at any time before the assessment is made is a valid return and it was observed that if section 22(3) is complied with, section 22(1) also must be held to have been complied with. The Supreme Court was considering the validity of the return filed before the assessment is made for purposes of section 24(2) of the Income-tax Act. The Supreme Court was not examining the penal provisions of similar nature appearing in the Income-tax Act or even the provisions pertaining to imposing of penalty. It is also a well-settled rule of interpretation that the observations or findings of the Supreme Court have to be given importance keeping in view the context in which they are made. The Supreme Court was deciding a totally different question in this case and thus, it cannot be held that if the return is filed at any time before the assessment is made, the ingredients of the offence mentioned under section 35B of the Act would not be made out. If the intention of the Legislature was so, it was not difficult to have provided in the aforesaid proviso (ii) that no person shall be prosecuted if he files the return at any time before the assessment is made; rather the Legislature deliberately provided the outer limit of filing the return before the end of the assessment year for escaping the penal consequences of not filing the return deliberately within the stipulated period in section 14(1) or section 14(2) of the Act.
10. Counsel for the respondent has, on the other hand, made reference to T K Roy v. CWT [1978] 115 ITR 746 (Gauhati) where the question which arose for decision was with regard to the provisions of section 18 of the wealth-tax Act which section is couched in similar language as section 35B of the Act. Under section 18(1)(a)(i), a person becomes liable to pay penalty if he fails to file the return of the assessment within the time prescribed in section 14(1) or section 14(2) of the Act. There was a conflict of opinion between the two judges before whom the case came up for decision but then the matter was referred to the third judge who concurred with the opinion of one judge and it was laid down in this case that in case the return is not filed within the time laid down in section 14(1) or section 14(2) of the Act, the assessed becomes liable to penalty.
11. Learned counsel for the petitioners has tried to distinguish this case by urging that the penal provisions of section 35B were not in issue in the said judgment and thus, the said judgment would not be of any help in deciding the present case. When the provisions of section 18 pertaining to imposition of penalty and the provisions of section 35B are almost similar, it cannot be said that the opinion expressed regarding construing the words “due time” appearing in both the provisions is of no help in construing the provisions of section 35B. I entirely agree with the reasons given in this judgment for holding the view that an assessed would be deemed to have committed the offence on his failure willfully to file the return within the time prescribed under section 14(1) or section 14(2).
12. Learned counsel for the respondent has also cited Maya Rani Punj v. CIT . Although the question which arose for decision in the said case was that the offence committed under section 271(1)(a) of the Income-tax Act, 1961, is a continuing offence or not and it was held that it is a continuing offence, but it was laid down that the offence is committed by the person if he fails to file the return, or if the return is not filed within the stipulated period under section 139(1) of the Income-tax Act which is similarly worded as section 14(1) of the Act. Section 139(4) of the Income-tax Act almost corresponds to section 15 of the Wealth-tax Act, it was held in this judgment that the assessed becomes liable to pay penalty or return being not filed in time prescribed in section 139(1) of the Income-tax Act.
13. Learned counsel for the petitioners, as a matter of fact, did not dispute that if the return is not filed within the time prescribed in section 14(1) or section 14(2) of the Act, the assessed is liable to be visited with penalties in accordance with section 18 of the Act. I do not understand that when the provisions of section 18 and section 35B with regard to the ingredients, viz., for imposing penalty and for prosecuting the assessed are similarly worded, how a different interpretation can be given in respect of the said provisions of section 35B.
14. The Kerala High Court also has taken the same view in N. Velappan v. CWT [1989] 179 ITR 423. So. I hold that the mere fact that the petitioners had filed the returns before the assessment is made in consonance with the provisions of section 15 of the Act is not sufficient to wipe out the penal liability incurred by the petitioners for not filing the returns willfully as laid down in section 35B within the due time prescribed in section 14(1) or section 14(2) of the Act. The words “due time” appearing in section 35B take their colour from the provisions of section 14(1) or section 14(2) or section 17(1) of the Act. It cannot be urged that the words “due time” have to be given a meaning so as to include the time mentioned in section 15 of the Act. If that had been the intention of the Legislature, the Legislature would have mentioned in the proviso, sub-clause (ii), that no person shall be prosecuted if the return is filed before the assessment is made instead of mentioning the words “before the expiry of the assessment year”. I, hence, negative this contention of learned counsel for the petitioners.
15. Now, coming to the second contention of learned counsel for the Petitioners that once the directions have been given for initiation of penalty proceedings, no resort could have been made legally for launching criminal proceedings. I may straightaway refer to Dharma Pratishthan v. Miss B Mandal, IAC [1988] 173 ITR 487, a judgment given by this court wherein the question which arose for decision was whether the criminal proceedings should be quashed or not in case the assessment order on the basis of which the criminal proceedings were brought had been set aside. Relying on a judgment of the Supreme Court in the case of P Jayappan v. S K Perumal, 1st ITO [1984] 149 ITR 696, it was held that there is no law which provides that the prosecution for the offences provided in the statute cannot be launched until the assessment proceedings are completed by the revenue authorities and mere expectation of success in any assessment proceedings or in the appellate proceedings cannot come in the way of institution of criminal proceedings. It was also held that the judgment given in revenue matters may be taken into consideration by the criminal court but the criminal proceedings cannot be quashed only on the score that a judgment has been given in a revenue matter which may have a bearing on the question which has to be decided by the criminal court independently.
16. Learned counsel for the petitioners has contended that section 35A of the Act deals with the criminal prosecution of a person who willfully attempts in any manner to evade any tax, penalty or interest and he could be prosecuted without prejudice to any penalty that may be imposed, while, under section 35B, the words “without prejudice to any penalty that may be imposable” stand omitted. So, the irresistible conclusion is that if penalty is to be imposed for the default made in furnishing the wealth-tax returns, then, no criminal prosecution could be launched under section 35B. In the present case, admittedly, no penalty proceedings have been launched against the petitioners. So, this question does not arise for consideration in the present case.
17. Learned counsel for the petitioners has cited Fertilizer Corporation of India Ltd. v. State of Bihar , wherein, on facts, the Supreme Court found that, in the said case, the assessing authority had neither levied a penalty nor made a best judgment assessment and the assessment orders, while adverting to the delay in the filing of the returns, did not record a finding that the delay was without reasonable cause and thus the court drew the inference that the returns, though filed belatedly, had been accepted and acted upon by the prescribed authority and the court found no reason why an extention of time could not be inferred from the attendant circumstances in that case. Nothing said in this judgment is of any help to the petitioners when, admittedly, by a speaking order, the applications of the petitioners seeking condensation of delay in filing the returns have been rejected.
18. Counsel for the respondent has cited Gulab Chand Sharma v. H P Sharma [1974] 2nd I Delhi 190, where a Division Bench of this court has held that proceedings for imposition of penalty taken against the accused under the Income-tax Act are distinct from the criminal complaints to be filed under the provisions of the said Act. In this very judgment, it was held that there is no requirement of law for giving any notice to show cause before filing the criminal complaint. So, I do not find any merit in this contention as well which I, hereby, negative.
19. As far as the question of fact is concerned, whether the petitioners had committed willful default in not filing the wealth-tax return in due time, the same can only be gone into during the trial. Prima facie, the mere fact that their explanations have been accepted by the Income-tax Appellate Tribunal while condoning the delay made in filing the income-tax returns, in my opinion, is not sufficient to hold that, in the present case also, the petitioners cannot be held guilty of willful default in not filing the wealth-tax returns in time. The delay made in filing the income-tax returns was very much less than the delay made in filing the wealth-tax returns. Counsel for the petitioners has made reference to Gopalji Shaw v. ITO . It was held in this The Judgment of the the object of launching criminal prosecution for willful default is to prevent evasion of tax but, in each and every case, without looking into the gravity of offence and without considering the attendant circumstances, no prosecution should be launched and unless there is willful default in filing the return, no prosecution can be launched. It was also held that if the quasi-criminal proceeding, namely, the proceeding for the imposition of penalty, cannot be sustained when the Income-tax Officer, while making the assessment, charges interest, on a parity of reasoning, no criminal proceedings can be launched in such a case and, in the criminal proceeding, willful default in filing the return has to be established. In this judgment, it was held by a single Bench of the Calcutta High Court that. By charging interest under section 139(8) of the Income-tax Act, the Income-tax Officer has impliedly extended the time to file the return and the question of willful default in filing the return of income does not and cannot arise. The facts of the case are distinguishable. Here, the Wealth-tax Officer has not condoned the delay by the petitioners in filing the wealth-tax returns, rather the prayer of the petitioners for condensation of such delay has been rejected by the Wealth-tax Officer. so, this judgment is not applicable to the facts of the present case.
20. Counsel for the petitioners has placed reliance on CWT v. Ramniklal D Mehta [1982] 136 ITR 729 (Orissa). On the facts, it was found that there was no material on the record to come to the conclusion that the assessed knew his liability under section 14(1) prior to the service of a notice under section 17 and that he could not have hoped to conceal the particulars of wealth from the Department because they were already on the departmental records and the assessed was unaware of his statutory liability. It was held that the penalty was rightly deleted in such facts and circumstances by the Tribunal.
21. Learned counsel for the petitioners has contended that the petitioners being already assessed to wealth-tax, there could be no possibility of their escaping the payment of wealth-tax willfully and thus on a parity of reasoning it should be held that the petitioners had not willfully defaulted in the matter of filing wealth-tax returns in the present cases. He has argued that the taxing authority very well knew about the assets of the petitioners as the petitioners have been filing wealth-tax returns for earlier assessment years and have been assessed to a wealth-tax. It is a question of fact to be determined in every case as to whether there is any willful default or not. In the present case, prima facie, when the wealth-tax returns have not been filed for about five years or so, an inference can be drawn that the petitioners have been in willful default as contemplated by section 35B. It is not the ingredient of section 35B that there should be any deliberate intention to evade tax. The offence is complete if a person willfully fails to furnish the return as required by section 14(1) or section 14(2). The petitioners are pleading certain facts such as there having taken place income-tax raid on them and their record becoming untraceable and they were finding it difficult to have the foreign income figures and some reference was pending with the Hon’able High Court with regard to the status of the family but prima facie these reasons are not sufficient to hold that the petitioner had not willfully defaulted in this matter. After all, they were filing the wealth-tax returns earlier also and there could have been no such difficulty in filing wealth-tax returns for the subsequent assessment years in time. Be that as it may, no final verdict can be given on this aspect of the case till the parties have led evidence on merits. I leave this question open for decision by the court concerned after completion of the trial.
22. Counsel for the petitioners has also made reference to Sequoia Construction Co. P. Ltd. v. ITO [1986] 158 ITR 496 (Delhi). Brief notes of the case have been mentioned therein from where it is clear that the assessed had established good and sufficient reason for the default made by him and the penalties were cancelled. It was held by the High Court that it would be a sheer exercise in futility and harassment of the accused to allow criminal proceedings on the same facts to continue. In the present case, There is no finding given by the authorities in any penalty proceedings that the petitioners have not committed willful default. So, this judgment cannot help the petitioners. The mere fact that no penalty proceedings have been actually launched against the petitioners is no ground to quash the criminal proceedings if the ingredients of the offence mentioned in section 35B stand prima facie made out.
23. Similar, on facts, S. K. Sinha v. S. K. Shingal [1987] 32 DLT 91, a judgment of a single Bench of this court, is distinguishable. In the said case, the petitioner was criminally prosecuted under the Customs Act. On the same facts, adjudication proceedings were brought against the petitioner. The adjudication proceedings turned out in favor of the petitioner and the findings were given on the merits of the case in favor of the petitioner. This court held that, on the same facts and circumstances, criminal prosecution cannot continue. Such is not the case here. As held by the Supreme Court in R. S. Nayak v. A. R. Antulay , that there is no scope for doubt that the stage at which the magistrate is required to consider the question of framing of a charge under section 245(1) is a preliminary one and the test of “prima facie” case has to be applied. In the present case, keeping in view the facts mentioned in the complaint, it cannot be said that there was no prima facie case made out for charging the petitioners for the offences punishable under section 35B. it was held in Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre , that the legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverter allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. In the present case, as a prima facie case appears to have been made out against the petitioners, the question of quashing the trial does not arise. The order of the Magistrate charging the petitioners to face the trial for the offence under section 35B of the Act does not appear to suffer from any illegality or impropriety.
24. I find no merit in these criminal revision petitions which I, hereby, dismiss. The files of the trial court be immediately returned to the court concerned for proceeding in the matter in accordance with law.