JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. Sumeet Gadodia, the learned counsel for the petitioners, Mr. Santosh Kumar Shukla, the learned counsel for the respondent-State and Mr. R.N. Sahay, the learned Sr S.C appearing for the Income Tax Department. 2. This petition has been filed for quashing of the entire criminal proceeding arising out of Complaint Case being Economic Offences Case No. 4 of 2019, including the order taking cognizance dated 03.05.2019 passed by the learned Special Judge, Economic Offences, Ranchi for the alleged offence under section 276CC read with Section 278B of the Income Tax Act, 1961 and the case is pending in the court of learned Special Judge, Economic Offences, Ranchi. 3. The complaint case is filed alleging therein that O.P. No. 2 is Income Tax Officer posted at Ward 2(1) at Ranchi and the complaint has been filed in his official capacity at the instance of the Principal Commissioner of Income Tax, Ranchi. It is alleged that M/s Maa Diwri Rice Mills Pvt. Ltd having its unit at Poradih, Salgadih, N.H.33, Tamas, PS Tamar, District Ranchi is an assessee under the Income Tax Act, 1961 and it has been found that during the demonetization period from 8.11.2016 to 30.12.2016 an amount of Rs. 20,07,600/- was deposited by the said assessee in case. However it was alleged that the said assessee failed to furnish its return as required under the provision of section 139(1) of the Income Tax Act, 1961. It is further alleged that subsequently notice was issued under section 142 (1) of the Act but even the assessee failed to furnish its return of income nor any explanation was offered by the assessee. It is also alleged that for non- filing of the return within time shows willful intention of the assessee as not to file the return of income tax in time and as such, assessee is liable for prosecution for commission of offence under section 276CC of the Act. It is further alleged that the petitioner nos. 2 and 3 were acting as Principal Officer and Director of the company and they were thus responsible for the conduct of business of the company are also guilty of the offence. It is further alleged that the petitioner nos. 2 and 3 were acting as Principal Officer and Director of the company and they were thus responsible for the conduct of business of the company are also guilty of the offence. There is further allegation that sanction as required under section 279(1) of the Act has been accorded by the Principal Commissioner of Income Tax and the present complaint is being filed by the complainant/O.P. No. 2 for prosecution of the petitioners for alleged offence under section 276CC and 278B of the Income Tax Act. 4. The learned counsel for the petitioners submits that the learned court has been pleased to take cognizance by order dated 03.05.2019 under section 276CC read with section 278B of the Income Tax Act. He submits that the return for the financial year 2016-17 corresponding to the assessment year 2017-18 could not have been filed by the petitioner in terms of section 139 of the Income Tax Act before the due date which was certainly after expiry of the financial year 31.03.2017. He submits that due to unavoidable circumstances the petitioners have not filed the return within due date and accordingly notice was issued to the petitioners under section 142(1) of the Income Tax Act directing the petitioners to file their return and in compliance of the said notice the petitioners have already filed the return for the assessment year 2017-19 contained in Annexure-4. He submits that for the assessment year 2017-18 the petitioner deposited the admitted tax liability of Rs. 4,35,830/- contained in Annexure-5. He submits that section 276CC of the Income Tax is meant for prosecution against a person who willfully fails to furnish the return with due time with an intent to evade the payment of income tax. By way of referring the said Section he submits that provision to demonstrate that a person who fails to file its return by the due date is liable to be punished under the said section and if the amount of tax evaded is exceeding to Rs. 25 lacs, rigorous imprisonment for a term which shall not be less than six months which may even extend to 7 years and with fine. He submits that the intent of section 276CC are otherwise. He submits that the petitioners have already filed the return. 25 lacs, rigorous imprisonment for a term which shall not be less than six months which may even extend to 7 years and with fine. He submits that the intent of section 276CC are otherwise. He submits that the petitioners have already filed the return. He submits that in view of fulfilling the tax liability, unnecessarily the case has been filed by the Income Tax Department. He further submits that till date there is no penalty order by the Income tax Department and even no assessment case is pending against the petitioner. 5. The said argument is being resisted by Mr. Sahay, the learned counsel appearing on behalf of the Income Tax Department on the ground that it cannot be a ground of quashing of entire criminal proceeding. He submits that the Court is not required to interpret the section at this stage. He relied in the case of Sasi Enterprises vs. Assistant Commissioner of Income Tax, (2014) 5 SCC 139 and relied on paragraph nos. 28, 29, 30 and 32 of the said judgment, which are quoted below: “28. We have indicated that on failure to file the returns by the appellants, the Income Tax Department made a best judgment assessment under Section 144 of the Act and later show-cause notices were issued for initiating prosecution under Section 276-CC of the Act. The proviso to Section 276-CC nowhere states that the offence under Section 276-CC has not been committed by the categories of assessees who fall within the scope of that proviso, but it is stated that such a person shall not be proceeded against. In other words, it only provides that under specific circumstances subject to the proviso, prosecution may not be initiated. An assessee who comes within clause (ii)(b) to the proviso, no doubt has also committed the offence under Section 276-CC, but is exempted from prosecution since the tax falls below Rs. 3,000. Such an assessee may file belated return before the detection and avail the benefit of the proviso. The proviso cannot control the main section, it only confers some benefit to certain categories of assessees. In short, the offence under Section 276-CC is attracted on failure to comply with the provisions of Section 139(1) or failure to respond to the notice issued under Section 142 or Section 148 of the Act within the time-limit specified therein. 29. The proviso cannot control the main section, it only confers some benefit to certain categories of assessees. In short, the offence under Section 276-CC is attracted on failure to comply with the provisions of Section 139(1) or failure to respond to the notice issued under Section 142 or Section 148 of the Act within the time-limit specified therein. 29. We may indicate that the above reasoning has the support of the judgment of this Court in Prakash Nath Khanna vs. CIT, (2004) 9 SCC 686 . When we apply the above principles to the facts of the case in hand, the contention of the learned Senior Counsel for the appellant that there has not been any wilful failure to file their return cannot be accepted and on facts, offence under Section 276-CC of the Act has been made out in all these appeals and the rejection of the application for the discharge calls for no interference by this Court. 30. We also find no basis in the contention of the learned Senior Counsel for the appellant that pendency of the appellate proceedings is a relevant factor for not initiating prosecution proceedings under Section 276-CC of the Act. Section 276-CC contemplates that an offence is committed on the non-filing of the return and it is totally unrelated to the pendency of assessment proceedings except for the second part of the offence for determination of the sentence of the offence, the Department may resort to best judgment assessment or otherwise to past years to determine the extent of the breach. The language of Section 276-CC, in our view, is clear so also the legislative intention. It is trite law that as already held by this Court in B. Premanand vs. Mohan Koikal, (2011) 4 SCC 266 : (2011) 1 SCC (L&S) 676, that: (SCC p. 272, Para 19) “19....... “19. It is a well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. The language employed in a statute is the determinative factor of legislative intent.......” [Ed. As observed in Shiv Shakti Coop. Housing Society vs. Swaraj Developers, (2003) 6 SCC 659 , p. 669, Para 19].” If it was the intention of the legislature to hold up the prosecution proceedings till the assessment proceedings are completed by way of appeal or otherwise the same would have been provided in Section 276-CC itself. As observed in Shiv Shakti Coop. Housing Society vs. Swaraj Developers, (2003) 6 SCC 659 , p. 669, Para 19].” If it was the intention of the legislature to hold up the prosecution proceedings till the assessment proceedings are completed by way of appeal or otherwise the same would have been provided in Section 276-CC itself. Therefore, the contention of the learned Senior Counsel for the appellant that no prosecution could be initiated till the culmination of assessment proceedings, especially in a case where the appellant had not filed the return as per Section 139(1) of the Act or following the notices issued under Section 142 or Section 148 does not arise. 32. Section 278-E deals with the presumption as to culpable mental state, which was inserted by the Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1986. The question is on whom the burden lies, either on the prosecution or the assessee, under Section 278-E to prove whether the assessee has or has not committed wilful default in filing the returns. The Court in a prosecution of offence, like Section 276-CC has to presume the existence of mens rea and it is for the accused to prove the contrary and that too beyond reasonable doubt. Resultantly, the appellants have to prove the circumstances which prevented them from filing the returns as per Section 139(1) or in response to notices under Sections 142 and 148 of the Act.” 6. Relying on this judgment, he submits that the case of the petitioner is fit to be rejected. He submits that it is further well settled that penal provisions are required to be considered strictly as has been held by the Hon’ble Supreme Court in the case of U.S. Technologies International Pvt. Ltd. vs. Commissioner of Income Tax, 2023 SCC Online SC 387 and he relied on paragraph no. 30 of the said judgment, which is quoted below: “30. As per Section 271C(1)(a), if any person fails to deduct the whole or any part of the tax as required by or under the provisions of Chapter XVIIB then such a person shall be liable to pay by way of penalty a sum equal to the amount of tax which such person failed to deduct or pay as aforesaid. As per Section 271C(1)(a), if any person fails to deduct the whole or any part of the tax as required by or under the provisions of Chapter XVIIB then such a person shall be liable to pay by way of penalty a sum equal to the amount of tax which such person failed to deduct or pay as aforesaid. So far as failure to pay the whole or any part of the tax is concerned, the same would be with respect to Section 271C(1)(b) which is not the case here. Therefore, Section 271C(1)(a) shall be applicable in case of a failure on the part of the concerned person/assessee to “deduct” the whole of any part of the tax as required by or under the provisions of Chapter XVIIB. The words used in Section 271C(1)(a) are very clear and the relevant words used are “fails to deduct.” It does not speak about belated remittance of the TDS. As per settled position of law, the penal provisions are required to be construed strictly and literally. As per the cardinal principle of interpretation of statute and more particularly, the penal provision, the penal provisions are required to be read as they are. Nothing is to be added or nothing is to be taken out of the penal provision. Therefore, on plain reading of Section 271C of the Act, 1961, there shall not be penalty leviable on belated remittance of the TDS after the same is deducted by the assessee. Section 271C of the Income Tax Act is quite categoric. Its scope and extent of application is discernible from the provision itself, in unambiguous terms. When the non-deduction of the whole or any part of the tax, as required by or under the various instances/provisions of Chapter XVIIB would invite penalty under Clause 271C(1)(a); only a limited text, involving sub-section (2) of Section 115O or covered by the second proviso to Section 194B alone would constitute an instance where penalty can be imposed in terms of Section 271C(1)(b) of the Act, namely, on non-payment. It is not for the Court to read something more into it, contrary to the intent and legislative wisdom.” 7. In view of the above submissions of the learned counsels appearing for the parties, the Court has gone through the materials on record including the contents of the order taking cognizance and the counter affidavit of the Income Tax Department. It is not for the Court to read something more into it, contrary to the intent and legislative wisdom.” 7. In view of the above submissions of the learned counsels appearing for the parties, the Court has gone through the materials on record including the contents of the order taking cognizance and the counter affidavit of the Income Tax Department. It is admitted fact that for not filing the return for the financial year 2016-17 corresponding to assessment year 2017-18, notice has been issued against the petitioners and it is further admitted fact that the return was filed by the petitioners on 19.09.2019. The sanction has been granted on 31.01.2019 and the complaint case has been filed prior to that sanction. It is crystal clear that it was even within the knowledge of the authority concerned that the return for the same period has already been deposited and the tax liability has been fulfilled and in spite of that subsequently the case has been lodged. Further it is an admitted fact that there is no proceeding under the said statute for any demand and penalty. 8. In view of the above background, it appears that the tax was already deposited and thereafter the prosecution has been initiated. This is not a case that after initiation of the prosecution the tax has been deposited. Further there is no proceeding either for assessment or penalty by the concerned Department. Section 276B of the said Act speaks of the offences by the company whereas the liability has been fastened upon the person who is looking after the day-to-day affairs of the company and if such a mandate is there, the averments to that effect is required to be there in the complaint as to who was looking after the day to day affairs of the company, which is lacking in the case in hand. There is no penalty against the petitioners. In the case of K.C. Builders and Another vs. Assistant Commissioner of Income Tax, (2004) 265 ITR 562 (SC), wherein at paragraph no. 14, 15, 16 and 17 of the said judgment, it has been held as under: “14. Relevant paragraphs of the said judgment are quoted herein-below: “The above judgment squarely applies to the facts and circumstances of the case on hand. 14, 15, 16 and 17 of the said judgment, it has been held as under: “14. Relevant paragraphs of the said judgment are quoted herein-below: “The above judgment squarely applies to the facts and circumstances of the case on hand. In this case also, similarly, the application was moved by the assessee before the Magistrate to drop the criminal proceedings which were dismissed by the Magistrate and the High Court also on a petition filed under Sections 397 and 401 of the Criminal Procedure Code, 1973 to revise the order of the Additional Chief Metropolitan Magistrate has also dismissed the same and refused to refer to the order passed by the competent Tribunal. As held by this Court, the High Court is not justified in dismissing the criminal revision vide its judgment ignoring the settled law as laid down by this Court that the finding of the appellate Tribunal was conclusive and the prosecution cannot be sustained since the penalty after having been cancelled by the complainant following the appellate Tribunal's order, no offence survives under the Income Tax Act and thus quashing of prosecution is automatic. In the instant case, the penalties levied under Section 271(1)(c) were cancelled by the respondent by giving effect to the order of the Income Tax Appellate Tribunal in I.T.A. Nos. 3129-3132. It is settled law that levy of penalties and prosecution under Section 276C are simultaneous. Hence, once the penalties are cancelled on the ground that there is no concealment, the quashing of prosecution under Section 276C is automatic. In our opinion, the appellants cannot be made to suffer and face the rigorous of criminal trial when the same cannot be sustained in the eyes of law because the entire prosecution in view of a conclusive finding of the Income Tax Tribunal that there is no concealment of income becomes devoid of jurisdiction and under Section 254 of the Act, a finding of the Appellate Tribunal supersedes the order of the Assessing Officer under Section 143(3) more so when the Assessing Officer cancelled the penalty levied. In our view, once the finding of concealment and subsequent levy of penalties under Section 271(1)(c) of the Act has been struck down by the Tribunal, the Assessing Officer has no other alternative except to correct his order under Section 154 of the Act as per the directions of the Tribunal. In our view, once the finding of concealment and subsequent levy of penalties under Section 271(1)(c) of the Act has been struck down by the Tribunal, the Assessing Officer has no other alternative except to correct his order under Section 154 of the Act as per the directions of the Tribunal. As already noticed, the subject matter of the complaint before this Court is concealment of income arrived at on the basis of the finding of the Assessing Officer. If the Tribunal has set aside the order of concealment and penalties, there is no concealment in the eyes of law and, therefore, the prosecution cannot be proceeded with by the complainant and further proceedings will be illegal and without jurisdiction. The Assistant Commissioner of Income Tax cannot proceed with the prosecution even after the order of concealment has been set aside by the Tribunal. When the Tribunal has set aside the levy of penalty, the criminal proceedings against the appellants cannot survive for further consideration. In our view, the High Court has taken the view that the charges have been framed and the matter is in the stage of further cross-examination and, therefore, the prosecution may proceed with the trial. In our opinion, the view taken by the learned Magistrate and the High Court is fallacious. In our view, if the trial is allowed to proceed further after the order of the Tribunal and the consequent cancellation of penalty, it will be an idle and empty formality to require the appellants to have the order of Tribunal exhibited as a defence document inasmuch as the passing of the order as aforementioned is unsustainable and unquestionable.” 15. By way of referring this judgment, learned counsel for the petitioner submits that once the penalties are cancelled on the ground that there is no concealment, the quashing of prosecution under Section 276CC is automatic and the petitioner cannot be made to suffer and face the rigorous of criminal trial when the same cannot be sustained in the eyes of law because the entire prosecution in view of a conclusive finding of the Income Tax Tribunal that there is no concealment of income becomes devoid of jurisdiction and under Section 254 of the Act, a finding of the appellate authority supersedes the order of the Assessing Officer under Section 143(3) and more so when the Assessing Officer cancelled the penalty levied. 16. 16. Learned counsel for the petitioner further submits that protective measure because of similar penalty was the subject matter before the Punjab and Haryana High Court in the case of Commissioner of Income Tax, Patiala vs. Behari Lal Pyare Lal, (1983) 141 ITR 32 (P&H). 17. Relevant paragraph of the said judgment is quoted herein-below: “The penalty was imposed by the IAC as a protective measure because a similar penalty had already been imposed on the two partners for concealment of the said income. The Tribunal found that, under law, a protective order of assessment can be passed but not of penalty. The learned counsel for the Revenue was unable to challenge this view of the Tribunal and frankly conceded that he was not able to cite any provision of law or decided case which warranted a protective order of penalty. That apart, no finding was recorded by the IAC that there was any wilful concealment of the income and in the absence of such a finding, the order of penalty would be unsustainable. The other reason given for deleting the penalty was that the income did not accrue to the present firm. As is apparent from the facts stated above, the amount received by the firm was not credited in its account and instead credited to the accounts of Lachhman Dass and Sat Parkash who were partners in the earlier firm. The assessee-firm, therefore, did not treat the said amount as its own and it being a firm different from the one to whom the refund had been made could not be held guilty of any concealment. The Tribunal, therefore, rightly deleted the penalty and questions Nos. 1 and 3 are accordingly answered against the Revenue and in favour of the assessee.” 9. Looking to the above judgment of the Hon’ble Supreme Court it appears that the case of the petitioners is fully covered as against the petitioners there is no penalty or assessment and further the petitioners have already deposited the tax and after depositing the tax the present case has been filed. There is no doubt that the willful failure occur in section 276CC of the Income Tax Act, 1961, can attract if the willfulness brings in the element of guilt and thus, the requirement of mens-rea will come into force. There is no doubt that the willful failure occur in section 276CC of the Income Tax Act, 1961, can attract if the willfulness brings in the element of guilt and thus, the requirement of mens-rea will come into force. In the case in hand, the petitioners have already deposited the tax and thereafter the said prosecution has been initiated. The judgment relied by Mr. Sahay, the learned counsel for the respondent Income Tax Department in the case of Sasi Enterprises(supra), the proviso to section 276CC was also considered and section 276CC of the said statute is quoted below: “276. CC. Failure to furnish returns of income- If a person willfully fails to furnish in due time the return of income which he is required to furnish under sub-section (1) of Section 139 or by notice given under clause (i) of sub-section (1) of Section 142 or Section 148, he shall be punishable: (i) In a case where the amount of tax which would have been evaded if the failure had not been discovered, exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine. (ii) In any other case, with imprisonment for a term which shall not be less than three months but which may extend to three years and with fine: 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 section (1) of Section 139- (i) For any assessment year commencing prior to the 1st day of April, 1975. (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. (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.” 10. Looking into clause (ii)(b) of section 276CC, it is crystal clear that if the tax payable determined on regular assessment is reduced by advance tax paid and the tax deducted at source does not exceed Rs. 3,000/- such an assessee shall not be prosecuted for not furnishing the return under section 139(1) of the said Act. Looking into clause (ii)(b) of section 276CC, it is crystal clear that if the tax payable determined on regular assessment is reduced by advance tax paid and the tax deducted at source does not exceed Rs. 3,000/- such an assessee shall not be prosecuted for not furnishing the return under section 139(1) of the said Act. There is no assessment against the petitioners in the present case and the tax liability is not there even to the tune of Rs. 3,000/- in view of the imposition of the tax. This aspect of the matter has already been considered by the Hon’ble Supreme Court in the case of Sasi Enterprises (supra) on which much force has been made by the learned counsel for the Income Tax Department and the said aspect was discussed in paragraph no. 25 of the said judgment which is quoted as under: “25. Section 276-CC applies to situations where an assessee has failed to file a return of income as required under Section 139 of the Act or in response to notices issued to the assessee under Section 142 or Section 148 of the Act. The proviso to Section 276-CC gives some relief to genuine assessees. The proviso to Section 276-CC gives further time till the end of the assessment year to furnish return to avoid prosecution. In other words, even though the due date would be 31st August of the assessment year as per Section 139(1) of the Act, an assessee gets further seven months' time to complete and file the return and such a return though belated, may not attract prosecution of the assessee. Similarly, the proviso in clause (ii)(b) to Section 276-CC also provides that if the tax payable determined by regular assessment as reduced by advance tax paid and tax deducted at source does not exceed Rs. 3000, such an assessee shall not be prosecuted for not furnishing the return under Section 139(1) of the Act. Resultantly, the proviso under Section 276-CC takes care of genuine assessees who either file the returns belatedly but within the end of the assessment year or those who have paid substantial amounts of their tax dues by pre-paid taxes, from the rigour of the prosecution under Section 276-CC of the Act.” 11. Resultantly, the proviso under Section 276-CC takes care of genuine assessees who either file the returns belatedly but within the end of the assessment year or those who have paid substantial amounts of their tax dues by pre-paid taxes, from the rigour of the prosecution under Section 276-CC of the Act.” 11. There is no doubt that the penal provision is required to be dealt with as it is, and the court is not required to shift the language of penal provision, however, in the case in hand, the facts are otherwise. 12. In view of the above, the judgment relied by Mr. Sahay, the learned counsel for the Income Tax Department in the case of U.S. Technologies International Pvt. Ltd. (supra) is not attracted. It has been pointed out in course of the argument that identical issue was decided by this Court in batch of cases in Cr. M.P. No. 2941 of 2018 along with others, which was challenged before the Hon’ble Supreme Court and the S.L.P. has been dismissed. 13. In view of the above facts, reasons and analysis, entire criminal proceeding arising out of Complaint Case being Economic Offences Case No. 4 of 2019, including the order taking cognizance dated 03.05.2019 pending in the court of learned Special Judge, Economic Offences, Ranchi is quashed. 14. Cr. M.P. No. 3329 of 2019 is allowed and disposed of. 15. Pending petition if any also stands disposed of accordingly.