H.N.KAPOOR, J. - (1.) THESE nine petitions have been filed by the firm Moti Lal Ram Kishan through its karta Moti Lal for quashing nine separate prosecutions under S. 276(c) of the IT Act, 1961 for failure to file returns of the income of the HUF for nine assessment years' that is 1963-64 to 1971-72, inspite of notice having been served on the petitioner under S. 148 r/w S. 139(2) of the IT Act. The HUF did not file the returns for all the nine assessment years inspite of the notices which were duly served. Hence the joint family firm was prosecuted through its karta on the basis of nine separate complaints lodged by the ITO after having been authorised by the CIT. An objection was raised before the learned Magistrate on behalf of the petitioner that the HUF was not an individual but a legal entity and as such it could not be prosecuted. This objection was rejected by the Magistrate. Nine revisions were than filed which were dismissed by Sri H.C. Lal VI Addl. District and Sessions Judge, Kanpur by his order dt. 16th July, 1974.
(2.) SRI Deoki Nandan, learned counsel for the opposite party has raised a preliminary objection that these petitions should not be entertained because the effects would be circumventing the provisions of S. 397 Cr.P.C. (New) which bars the filing of a second revision. In my opinion, these revisions should not have been at all entertained by the learned Sessions Judge as they were against interlocutory orders. This Court can certainly go into the question under S. 482 Cr.P.C. whether no case is made out against the petitioner on the basis of the complaint or the prosecution of the petitioner is illegal on the face of it. Sri Rajeshwari Pd. Learned counsel for the petitioner has argued these cases at length on the assumption that Mohan Lal himself was not being prosecuted as karta of the HUF. He has placed reliance on the case of Kapurchand Shrimal vs. TRO, Hyderabad & Ors. (AIR 1969 SC 682). in which it was held that the manager of the HUF cannot be sent to prison under S. 222 of the IT Act during recovery proceedings for default of the HUF, the assessee was the HUF and not the manger. He has argued that under S. 276C of the Act the word "person" in fact refers to the word "assessee" as the assessee alone can be required to submit the returns under S. 139(1) and (2) of the Act. In my opinion for the purpose of these cases it is not necessary to go into the question and to decide whether the manager of the HUF can be prosecuted under S. 276C or not. In the present case the HUF firm known by the designation 'Moti Lal Ram Kishan' is being prosecuted though, no doubt, through its karta. It does not mean that the manager can be sent to prison or himself punished in his individual capacity simply because the firm is being prosecuted through him. Sri Deoki Nandan has also conceded that the fair reading appears to be that the HUF is being prosecuted and not the karta. In case Moti Lal was himself prosecuted, he could have been made another accused alongwith the firm.
(3.) LEARNED counsel for the petitioner next argued that the prosecution for default in respect of eight assessment years except the asst. yr. 1971-72 (which is the subject-matter of Cr. Misc. Case No. 4359 of 1974) is illegal and is against the provisions of S. 276 C as the proviso to the section is that a person will not be proceeded against in case he has failed to furnish returns under S. 139 of the Act for any assessment year commencing period to the 1st April, 1971. It would be proper to reproduce the entire S. 276C. "276C-If a person wilfully fails to furnish in due time the return of income which he is required to furnish under sub-s. (1) of S. 139 or by notice given under sub-s. (2) of S. 139 or S. 148, he shall be punishable with rigorous imprisonment for a term which may extend to one year or with fine equal to a sum calculated at a rate which shall not be less than four rupees or more than ten rupees for every day during which the default continues, or with both. 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-s. (1) of S. 139- (i) for any assessment year commencing prior to the 1st April, 1971; or- (ii) for an assessment year commencing on or after the 1st April, 1971, 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 plain reading of the section is that the proviso is applicable only to a case falling under sub-s. (1) of S. 139 of the Act not to a case falling under sub-s. (2) of S. 139 of the Act or under S. 148 thereof. The complaint case is that the petitioner failed to submit return inspite of the notice issued under S. 148 r/w S. 139(2) of the Act requiring it to submit the return within thirty days. There is thus no force in this contention of the learned counsel for the petitioner;