Constitutionality Of Section 278E Of The Income-tax Act, 1961

Advocate Sarthak P. Shetty has argued that section 278E of the Income-tax Act, which shifts the burden of proof upon the assessee and provides that an accused is presumed to have a culpabe mental state, is contrary to the basic principles of criminal law and makes serious inroads on the fundamental rights of citizens. He has pointed out that even in the other statutes such as The Prevention of Corruption Act and the NDPS Act, where the burden is shifted to the accused, the accused has to satisfy the Court only on the touchstone of preponderance of probabilities and not “beyond reasonable doubt”. He has also referred to all the leading cases on the subject to support his argument

The section 278E of the Income-tax Act, 1961 (the IT Act) has been re­produced below:

A. Presumption as to culpable mental state.

278E. (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

Explanation.—In this sub-section, "culpable mental state" includes intention, motive or knowledge of a fact or belief in, or reason to believe, a fact.

(2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

B. Purpose for enactment

In paragraph 12.2 of the Explanatory Notes on the Taxation Laws (Amendment) Act, 1986, it is stated that in order to effectively tackle the problem of tax evasion, the Income Tax Department will implement a strategy consisting inter alia of removing weaknesses in the law which hinder effective prosecution of tax evaders and that it was intended to incorporate certain provisions in the direct tax laws, similar to those which already existed in the Customs Act and the Gold (Control) Act. The intention of the Government was announced by the long term fiscal policy to amend the direct tax laws providing similar provisions so that once evasion is proved, the intention to evade need not be proved. Section 278E, which has been extracted above, was based on the provisions contained in similar enactments dealing with economic offences. The Statement of Objects and Reasons with reference to Section 278E to the Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1986 reads thus :

To remove weaknesses in the provisions in the direct tax laws in respect of penalties and prosecution so as to shift the burden of proof on the assessee and to provide that once the evasion of tax is proved, the intention to evade need not be proved by the income tax department.

C. Ground for challenge

The challenge is that through this provision an unintentional act on the part of an assessee may lead to punishment. It is possible that a person may commit a default though he has no knowledge or no mens rea yet he would be liable for punishment. The requirement of mens rea and the burden of proof of the same on the prosecution has been diluted with this provision. Any person who unknowingly commits a default would automatically be rendered liable for punishment unless he can prove “beyond reasonable doubt” that there was an absence of a “culpable mental state” which is contrary to the basic principles of criminal law. This note also questions the constitutionality of the said provision as it makes serious inroads on fundamental rights of the citizens. In other words section 278E of the IT Act is ultra vires to part III of the Constitution.

D. Challenge to section 278E of the IT Act in Madras High Court

It is pertinent to note that the question as to the constitutional validity of section 278E of the IT Act was raised before a single judge bench of the Madras High Court in the case of Selvi J. Jayalalitha, Vs. the Union of India (UOI), Rep. by its Secretary, Finance Department [2007] 288 ITR 225 (Mad) wherein it was held as under:

“72. It was also submitted on behalf of the petitioners that the offending provision renders the word ‘wilfully’ in Section 276CC of the Act and other such words indicating culpable mental state otiose. Such a situation would arise only if the accused was not given any opportunity to prove the lack of culpable mental state on his part. If Section 278E had been otherwise worded as to exclude the requirement of culpable mental state, then we could accept the submission that the word ‘wilfully’ had been rendered otiose. On the other hand, it is only because the mens rea is still a requisite element of the offence under Section 276CC that the legislation has required the petitioners to show that for compelling reasons, the petitioners could not file the returns in time. This itself only underscores the position that the element of mens rea has not been excluded because of the impugned provision.

73. The apprehension expressed on the part of the petitioners that the prosecution will go about trigger happy, ‘picking and choosing’ whom to shoot down, is allayed by the mandatory requirement of sanction. Sanction is not an automatic formality and its provisions are to be observed with complete strictness. It is a weapon to ensure discouragement of a frivolous and vexatious prosecution and is a safeguard for the innocent, but not a shield for the guilty -vide Mansukhlal Vithaldas Chauhan v. State of Gujarat : 1997CriLJ4059 . This position further weakens the attack of unconstitutionality and arbitrariness.

74. While I am conscious that the mere fact that the provision impugned in these writ petitions has been in the statute book for over twenty years cannot be an answer in favour of its constitutionality, yet it is also a relevant factor in its favour, since this Section and similar other sections in the Customs Act, Foreign Exchange Regulation Act as also other such legislations have been in force all these years and there appears to have been no serious complaint of mindless and indiscriminate prosecution.

75. The decisions we have looked into show the following: A statute must work and every statute must be so interpreted as to make it work.

The requirement of proof of lack of guilty knowledge would not violate the Fundamental Rights or the International Covenants.

In the background of factual realities, it is open to the legislature to make such provisions as are necessary to plug the loopholes in order to prevent violations, if the earlier procedure was not effective.

Presumptions are really regulations of the burden of proof and not presumptions of guilt.

If there are certain facts, if when established would justify excuse what is prima facie an offence, then the onus of proving those facts obviously rests on the party accused.

Reasonableness can be tested against the opportunity given to the defendant to rebut the presumption; retention by the Court of the power to assess the evidence; and the difficulties and the near impossibility of obtaining direct evidence by the prosecution as to the mental state of the accused in the particular context.

There is no vagueness with regard to the words ‘reasonable doubt’ and the standard of reasonableness has been explained in the decisions referred to above.

‘Reasonable’ means exactly that -it should be reasonable and not far-fetched.

When a statute creates a duty or a liability and a failure in this regard as an offence, then it is reasonable not to ask the prosecution to prove as part of its case, that the defendant was aware of his duty or liability.

Proportionality should be read in the context of competence of the legislature and even-handed application insofar as proportionality of legislative power is concerned.

Apprehension that there will be mindless and wild launching of criminal prosecution does not have any basis, since the initiation of prosecution depends on sanction; that itself is a check on such arbitrary prosecution.

No law can be declared illegal because there is a possibility of its misuse.

The legislature has a duty to safeguard the economic interest of the country.

New economic activities and consequent aberrations require new penal controls and new modes of enforcement.

The policy devised to ensure this is largely judge-proof as per the Constitutional jurisdiction except in very rare cases.

Individual liberty does not stand alone, but it stands with morality, law, justice, common good and responsibility.

76. I, therefore, reject the attack on the constitutionality of Section 278E of the Income Tax Act, 1961. The writ petitions are dismissed. No costs. Consequently, M.P. Nos.1, 1, 1, 1 of 2006 are closed.”

Thus in the said judgment the Hon’be Judge of the Madras High Court was pleased to uphold the constitutional validity of section 278E of the IT Act. Now let us delve into some of the other provisions under criminal law wherein certain aspects are presumed against the Accused.

E. Presumption under the Negotiable Instrument Act, 1881

A negotiable instrument including a cheque carries presumption of consideration in terms of Section 118(a) and Under Section 139 of the Act. Sections 118(a) and 139 read as under:

118. Presumptions as to negotiable instruments.-Until the contrary is proved, the following presumptions shall be made:

(a) of consideration–that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;….

XXX XXX XXX

139. Presumption in favour of holder.–It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.

In Kumar Exports [(2009) 2 SCC 513], the Apex Court has held that:

To rebut the statutory presumptions an Accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The Accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the Accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the Accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant.

In a judgment reported as Bir Singh v. Mukesh Kumar MANU/SC/0154/2019 : (2019) 4 SCC 197, the Apex Court held that presumption Under Section 139 of the Act is a presumption of law. The Court held as under:

20. Section 139 introduces an exception to the general Rule as to the burden of proof and shifts the onus on the Accused. The presumption Under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are Rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the Accused beyond reasonable doubt.

The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the Accused adduces evidence showing the reasonable possibility of the non­existence of the presumed fact as held in Hiten P. Dalai [Hiten P. Dalai v.

Bratindranath Banerjee, MANU/SC/0359/2001 : (2001) 6 SCC 16 : 2001 SCC (Cri.) 960].

F. Presumption under the Indian Evidence Act, 1872

Under the Evidence Act, there are certain provisions which place the burden of proof on the Accused in certain circumstances. However, how the Accused has to prove the said facts has been analyzed by the Courts.

In Khomu Kasar Bahadur Raul and Ors. vs. State and Ors. (10.10.2017 ­BOMHC) [2017 (4) BomCR(Cri) (PB) 650 the Bombay High Court has held as under:

Section 106 of Indian Evidence Act contemplates that when any fact is especially within the knowledge of any person, the burden of proving that the fact is upon him. The Hon’ble Supreme Court in various cases while dealing with the aspect of "last seen together" has observed that if a person was last seen with the deceased, he must offer an explanation as to how and when he parted company. The explanation must appear to the Court to be probable and satisfactorily. If he does so, he must be held to have discharged his burden. But if he fails to offer explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him under Section 106 of Indian Evidence Act.

In 1956 S.C.R. 199 [Shambhu Nath Mehra v. State of Ajmer], the Supreme Court held that Section 106 does not abrogate the well established statute of criminal law that except in very exceptional classes of cases, the burden which lies on the prosecution to prove its case never shifts and that Section 106 is not intended to relieve the prosecution of that burden.

In Sucha Singh v. State of Punjab [2001 CriLJ 1734], the Supreme Court held that the presumption under Section 106 of the Indian Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts, from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference.

G. The Prevention of Corruption Act, 1988

Section 20 of The Prevention of Corruption Act, 1988 reads as under:

20. Presumption where public servant accepts any undue advantage

Where, in any trial of an offence punishable under section 7 or under section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under section 11.

While dealing with this section, the Apex Court has held in Mukut Bihari & Anr. Vs. State of Rajasthan (AIR 2012 SC 2270), as under:

“11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for [pic]independent corroboration before convicting the accused person.”

H. The Narcotic Drugs And Psychotropic Substances, Act, 1985

It would be pertinent to note that the NDPS Act also has a provision similar to section 278E of the IT Act which reads as under:

Section 35 : Presumption of culpable mental state.-. (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

Explanation.-. In this section "culpable mental state" includes intention, motive, knowledge, of a fact and belief in, or reason to believe, a fact.

(2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.

The constitutionality of the said section was challenged in the Supreme Court in Noor Aga v. State of Punjab and Anr. [(2008)16SCC417], the Court noted Section 35 of the NDPS Act which provides for presumption of culpable mental state and further noted that it also provides that the accused may prove that he had no such mental state with respect to the act charged as an offence under the prosecution. The Court also referred to Section 54 of the NDPS Act which places the burden to prove on the accused as regards possession of the contraband articles on account of the same satisfactorily. Dealing with the constitutional validity of Section 35 and 54 of the NDPS Act, the Court ruled thus:­

"The provisions of Section 35 of the Act as also Section 54 thereof, in view of the decisions of this Court, therefore, cannot be said to be ex facie unconstitutional. We would, however, keeping in view the principles noticed hereinbefore, examine the effect thereof vis–vis the question as to whether the prosecution has been able to discharge its burden hereinafter."

And thereafter proceeded to state that:

"8. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place the burden of proof in this behalf on the accused; but a bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution.

Whereas the standard of proof required to prove the guilt of the accused on the prosecution is "beyond all reasonable doubt" but it is "preponderance of probability" on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.

59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt."

In Bhola Singh v. State of Punjab (2011 CriLJ 2296), the Court, after referring to the pronouncement in Noor Aga (supra), concurred with the observation that only after the prosecution has discharged the initial burden to prove the foundational facts, then only Section 35 would come into play. While dislodging the conviction, the Court stated:­

" …. it is apparent that the initial burden to prove that the appellant had the knowledge that the vehicle he owned was being used for transporting narcotics still lay on the prosecution, as would be clear from the word "knowingly", and it was only after the evidence proved beyond reasonable doubt that he had the knowledge would the presumption under Section 35 arise. Section 35 also presupposes that the culpable mental state of an accused has to be proved as a fact beyond [pic].reasonable doubt and not merely when its existence is established by a preponderance of probabilities.

We are of the opinion that in the absence of any evidence with regard to the mental state of the appellant no presumption under Section 35 can be drawn. The only evidence which the prosecution seeks to rely on is the appellant’s conduct in giving his residential address in Rajasthan although he was a resident of Fatehabad in Haryana while registering the offending truck cannot by any stretch of imagination fasten him with the knowledge of its misuse by the driver and others."

As can be seen above, under the NDPS Act though the burden of proving absence of a “culpable mental state” put on the Accused was held to be constitutional the Courts have emphasized that the said presumption shall arise only when the condition precedent is fulfilled. Further, the standard of proof required is on the "preponderance of probability" on the accused and not “beyond reasonable doubt”.

I.        Thus it can be seen, that the requirement of mens rea is a constituent part of a crime unless and until a statute excludes it. Even where a statute provides for certain presumptions against the Accused, the onus is to be discharged only on a balance of probabilities and not beyond reasonable doubt. The provisions as discussed above relating to the manner of proving facts and the burden of proof establish clearly what the duty of the prosecution is with regard to establishing mens rea and presumption of innocence of the accused, and even where the onus is placed on the accused, it is only to prove it by a preponderance of probabilities and not to prove it beyond reasonable doubt. Section 278E of the IT Act runs counter to the well recognised principles of accusatorial system which requires the prosecution to establish the culpable mental state beyond reasonable doubt.

The following proposition of law as laid down in J.C. Smith & Brian Hogan’s Criminal Law, 6th Edition, pg. 31 was referred to by the Supreme Court in : [2003]2SCR436 [R. Balakrishna Pillai v. State of Kerala] :

It is a general principle of criminal law that a person may not be convicted of a crime unless the prosecution have proved beyond reasonable doubt both (a) that he caused a certain event or that responsibility is to be attributed to him for the existence of a certain state of affairs, which is forbiden by criminal law, and (b) that he had a defined state of mind in relation to the causing of the event or the existence of the state of affairs. The event, or state of affairs, is called the actus reus and the state of mind the mens rea of the crime

Thus shifting the burden of proving mens rea from the Prosecution to the Accused completely and that too “beyond reasonable doubt” is contrary to the basic principles of law and cannot be accepted.

J.       Under the Constitution of India

Article 13 (2): The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

Article 14: Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 21: Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 14 enjoins the State to ensure that the laws that are made should provide equal protection to all without any distinction i.e. the laws passed by the Legislature and their implementation by the Executive should lead to non-discriminatory and equal protection to all. The guiding principle underlying Article 14 is that all persons and things similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Laws should be applied to all in the same condition. It forbids only class legislation but not reasonable classification. But it is necessary that the classficiation must not be “arbitrary, artificial or evasive” and should be based on some real and substantive distinction bearing a just and reasonable relation to the object sought to be achieved by the Legislation.

The Apex Court in Shashi Mohan Vs. State of West Bengal [AIR 1958 SC 194] has held a permissible classification to be valid must in fact fulfill two conditions, name, 1) the classification must be founded on an intelligent differentia which distinguishes persons or things that are grouped together from others left out of the group, and 2)the differentia must have a rational relation to the object sought to be achieved by the statue in question.

It was held in Ajay Hasia and Ors. vs. Khalid Mujib Sehravardi and Ors. (AIR 1981 SC 487) that:

It must…now be taken to be a well settled that what Article 14 strikes at is arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not para-phrase of Article 14 nor is it the objective and end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above (as held in Shashi Mohan’s case), the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an "authority" under Article 12, Article 14 immediately springs into action and strikes down such State action.

Thus it is clear that any arbitrary or unreasonable action – any act which is so arbitrary or unreasonable that no fair minded authority could ever have made it-would be per se discriminatory and violative of Article 14.

Clauses 2 to 6 of Article 19 empower the State to impose “reasonable” restrictions on the exercise of this right by enacting proper legislation “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”. It is necessary that the restrictions imposed by law must be reasonable and not arbitrary or of excessive nature and the onus of proving it to the satisfaction of the Court lies with the State. The harsher the restriction, the heavier the onus on the State to prove the reasonableness. The restrictions must strike a proper balance between the freedoms guaranteed under Article 19(1) and the social control permitted by clauses 2 to 6 of Article 19.

The whole of Part III of the Constitution is to provide protection for the freedom and rights mentioned therein against arbitrary invasion by the State (State of West Bengal Vs. Subodh Gopal Bose, AIR 1954 SC 92) (2001) 2 S.C.C. 386 [Om Kumar v. Union of India] shows that proportionality has been applied to legislative action even from the year 1950. The Supreme Court in that case held as follows :

By ‘proportionality’ we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority ‘maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve’. The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the court. That is what is meant by proportionality.

Patanjali Sastri, C.J. in State of Madras v. V.G. Row : 1952CriLJ966 , observed that the Court must keep in mind the ‘nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time’.

While determining the validity of a statute, Courts may only ask the question whether there is legislative competence and whether there is any violation of human rights and in the context of violation of Article 14, Courts must look into the reasonableness, as to whether the classification is reasonable and whether there is sufficient nexus to the object that is sought to be achieved.

The procedure established by law must be just, fair and reasonable and not arbitrary, fanciful or oppressive. By shifting the burden of proving absence of culpable mental state on to the accused and requiring the same to be established beyond reasonable doubt, the rights guaranteed by the Constitution under Article 21 are violated. The requirement of proportionality and reasonableness as regards legislative action has not been met and there is failure to follow the principle of proportionality as formulated by the Supreme Court in Om Kumar v. Union of India (2001) 2 S.C.C. 386. This decision would show that Courts should determine, while considering the vires of a provision, whether the choice of the legislature excessively infringes the rights of the individual. Further, the principle of reasonableness, which is a basic feature of the Indian Constitution, as laid down by the Supreme Court in : AIR2007SC71 [M. Nagaraj v. Union of India] has also been ignored.

K. Conclusion

Though the said provision is held constitutional by the judgment of the Madras High Court in Selvi J. Jayalalitha’s case, there is no justification provided for shifting of the burden on the Accused “beyond reasonable doubt” which is contrary to the principles of criminal law. Further, even in other statutes where the burden is shifted to the Accused, the Accused has to satisfy the Court only on the touchstone of preponderance of probabilities. Further, the impugned provision is susceptible to rampant misuse and a policy of ‘pick and choose’ by the prosecution. The impugned provision is excessive since it applies to all offences under the Act, whereas the Statement of Objects and Reasons shows that it was intended to apply only to cases of evasion of tax. Further, it is also unconstitutional as it is clearly an arbitrary and unreasonable provision of putting excess burden on the Accused.

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