UNION OF INDIA Vs. PRAKASH MEHRA

JUDGEMENT

(1.) LEAVE to amend the revision, i.e. to add the State as party respondents, is granted. Amendment is carried out immediately. Heard APP for State along with Mr. Mehta for the petitioner and Mr. Verma for respondent No. 1

(2.) THE petitioner-Union of India through IT Department has challenged the order of the Additional Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai, dt. 7th Aug., 1997, by which he discharged the accused under S. 276-O of the IT Act, 1961 ('the Act'). The accused was prosecuted by the IT Department by filing a complaint under S. 276CC of the Act, i.e., for not filing the returns for the year 1986-87 within time or on due date. According to the prosecution, the due date for filing returns for 1986-87 was 31st July, 1986, that the accused had applied for extension of time and same was granted up to 31st Oct., 1986. However, the accused filed the return on 22nd June, 1988 and, hence, he was prosecuted by filing a complaint. The Trial Court examined three prosecution witnesses before framing the charge and when the case came up for framing of the charge, the accused also simultaneously applied or prayed for discharge. His prayer was allowed on two courts. Firstly, on the ground that no notice was given by the complainant to the accused under S. 276CC and secondly, on the ground that so far as the merits of the case were concerned, there were sufficient reasons for the accused not to file the return in time or on due date.

(3.) IT appears from the impugned order that the contention of the accused for discharge was that before initiating prosecution, no show-cause notice was given by the CIT and no personal hearing was, therefore, given to the accused. According to the accused, giving of notice and giving of an opportunity of being heard was mandatory before launching prosecution and for non-compliance thereof, the prosecution was liable to be quashed and the accused was entitled for discharge. It was further contended before the Trial Court that show-cause notice was given by the Asstt. CIT Central Circle Mumbai, and not by the CIT and, consequently, there was no legal notice.