D N MUNSHI Vs. SINGH N B

JUDGEMENT

(1.) THIS revision is directed against an order of the 1st Civil and Sessions Judge by which he dismissed the revision filed against the trial Court's order refusing to discharge the accused on his pleas that the prosecution could not legally proceed.

(2.) A complaint was filed by the ITO for an offence under S. 277 of the IT Act (hereinafter to be referred to as "the Act"). The complaint made the allegation that for the asst. year 1963 -64, the accused had filed a return in which he had concealed the particulars of his income. The summonses were issued to the accused but before the charge was framed an objection was taken to the further proceeding of the trial in view of S. 279 of the Act. It was urged that the complaint had not been filed at the instance of the CIT and that the case could not proceed against the accused in view of the penalty being waived within the meaning of S. 279(1A) of the Act. The contentions were not accepted by the Magistrate and the 1st Civil and Sessions Judge dismissed the revision. Certified copy of the judgment of the Tribunal in the appeal arising out of the penalty proceeding and of the AAC dismissing the appeal against the original assessment order as infructuous have been filed as additional evidence in this Court.

(3.) ACCORDING to sub -s. (1) a person can be proceeded against for an offence under S. 277 only at the instance of the CIT. The evidence produced in the case shows that the CIT had authorised the prosecution. In view of the law laid down by the Supreme Court in the case of T.S. Baliah vs. T.S. Rangachari, ITO (1969) 72 ITR 787 (SC) : TC48R.189 "at the instance of the Commissioner" must mean "at the authorisation of the Commissioner". The prosecution cannot, therefore, be held to be without authority of law by reason of sub -s. (1) of S. 279 of the Act.