K INBASAGARAN Vs. ASSISTANT COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE accused is the petitioner herein.

(2.) THIS revision is directed against the order passed by the Principal Sessions Judge, City Civil Court, dated April 17, 1998, rendered in C. A. No. 34 of 1997, whereby he confirmed the conviction and sentence passed by the Additional Chief Metropolitan Magistrate, E. O. II, Egmore, Madras-8, in E.O.C.C. No. 73 of 1995.

(3.) THE point: THE petitioner would contend that the conditions necessary to invoke Section 276CC are singularly absent in this case. According to him, there must be a statutory and punishable delay. THE delay must be wilful. THEre must be evasion of tax by the assessee. THE exemption indicated in the proviso has to be scrupulously adhered to by the officers of the Income-tax Department. Hence, he would submit that the Department has failed to prove that there has been a wilful and punishable delay within the meaning of Section 276CC of the Income-tax Act. It is further submitted by the petitioner that the Department has issued certain guidelines and those guidelines are binding upon the Income-tax Officer. THE circular containing such guidelines are executive in character and concessional in nature. THE Income-tax Officer concerned failed to implement the circular and, hence, the prosecution is not maintainable. It is also submitted by the petitioner that the income-tax authorities have not exhausted the statutory facilities before resorting to prosecution. He would also submit that there has been failure to follow the procedure and discretion to resort to prosecution, which is colourable in nature, and, therefore, the proceeding against the petitioner has to be set aside. But, in my view, it is not necessary to go into the merits of the case. For, I am satisfied that a serious flaw and grave error have been committed by the trial magistrate. In my opinion, it goes to the root of the matter and affects the entire edifice.