D.P Sengupta, J.:—This revisional application is for quashing of the proceeding being Case No. C/293 of 1993 under section 276DD of the Income Tax Act, 1961, pending in the court of Metropolitan Magistrate, 3rd Court, Calcutta.
2. The opposite party No. 1 lodged a petition of complaint in the court of learned Chief Metropolitan Magistrate, Calcutta, alleging commission of an offence under section 276DD for allegedly taking loan of Rs. 14,500/- from Smt. Nirupama Chowdhury in utter disregard of and in contravention of the provision of section 269SS of the Income Tax Act, 1961, and thereby committed an offence punishable under section 276DD of the Income Tax Act. The learned Chief Metropolitan Magistrate took cognizance of the offence and transferred the case to the court of the learned Metropolitan Magistrate, 3rd Court, Calcutta.
3. It appears from records that during continuation of the said proceeding the present petitioner filed an application before the learned Magistrate on 10.10.94 with a prayer for dropping of the proceeding on the ground that section 276DD was omitted by the Income Tax Law Amendment Act, 1987, with effect from 1.4.89 The present petitioner filed another petition on 17.1.95 as a supplementary to her earlier application dated 10.10.94 with a further prayer for dropping the said proceeding specifically on the ground that under section 279(1) of the Income Tax Act, 1961, the Commissioner of Income Tax, W.B III, Calcutta had no power either to accord sanction or to authorise the opposite party No. 1 to institute a proceeding under section 276DD of the Income Tax Act with effect from 1.4.89 and as such the said proceeding is bad in law and the same should be dropped.
4. The aforesaid application was taken up for hearing by the learned Magistrate and the same was rejected by an order dated 18.4.94
Being aggrieved by the order dated 18.4.94 passed by the learned Magistrate the petitioner moved a revisional application in the City Sessions Court and the learned Sessions Judge, Bench IV, City Sessions Court, Calcutta, by his order dated 19.8.97 dismissed the said revisional application.
5. Mr. Utpal Bhattacharyya, learned Advocate appearing for the petitioner submits that the instant proceeding is liable to be quashed on the ground that the Commissioner of Income Tax, W.B III, Calcutta, had no power to accord sanction on 26.3.93 under section 279(1) of the Income Tax Act, 1961, for initiation of the aforesaid proceeding under section 276DD of the Income Tax Act. It is further submitted by the petitioner's learned Advocate that section 276DD of the Income Tax Act, 1961, was omitted by the Income Tax Law Amendment Act, 1987, with effect from 1.4.89 and as such initiation of the prosecution on 26.3.93 is illegal, bad in law and is liable to be quashed. According to Mr. Bhattacharyya the provisions of section 269SS of the Income Tax Act was punishable under section 276DD of the Act but section 276DD of the Act was omitted with effect from 1.4.89 and as such when the complaint was filed the violations of the provisions was no longer penal and the petition of complaint filed is not maintainable.
6. The learned Advocate appearing for the opposite party vehemently opposed the application and submitted that it is not disputed that section 276DD was omitted with effect from 1.4.89, but the contravention was alleged to have been made for the Assessment Year 1987-1988. So, it was open to the Income Tax Officer to launch prosecution in respect of the acts and omissions committed during the period when the provisions of repealed section was operative. It was his further submission that section 276DD was in operation at the time when the offence was committed, and the subsequent repeal of the section will not exonerate the petitioner of the violation. In support of his contention the learned Advocate for the opposite party has relied on a judgment of Punjab and Haryana High Court reported in 209 I.T.R 290, wherein it was held by the Hon'ble Court as follows:—
“It is correct that section 276DD of the Act was omitted with effect from April 1, 1989, but the contravention was alleged to have been made by the petitioners in the year 1985. Unless a different intention appears, the repeal does not affect, inter alia, any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, etc. Prima facie, it was open to the Assistant Commissioner of Income-tax to launch prosecution in respect of acts or omissions committed during the period the provisions of the repealed or unamended sections were operative. Section 276DD of the Act was in operation at the time the payments were alleged to have been accepted by the petitioners and subsequent repeal of the section will not exonerate the petitioners of the violation, if any, committed by them.”
7. The learned Advocate for the opposite party has also relied on another judgment of Punjab & Haryana High Court reported in 210 I.T.R 427, in which the Hon'ble Court held as follows:—
“Section 276DD was omitted with effect from April 1, 1989 but the contravention was alleged to have been made by the petitioners in the year 1988. Prima facie it was open to the Income-tax Officer to launch prosecution in respect of acts or omissions committed during the period the provisions of repealed or unamended sections were operative. Section 276DD was in operation at the time the payments were alleged to have been accepted by the petitioners and the subsequent repeal of the section will not exonerate the petitioners of violation, if any, committed by them.”
8. As regards the provisions of section 279(1) of the Income Tax Act the learned Advocate for the opposite party cited a decision reported in 195 I.T.R 137 (Madras High Court), but in my opinion that judgment has got no manner of application in the instant case, because the point which was decided in that case was that the offences under section 120B, 420, 109, 34 and 37 of the Indian Penal Code do not require any sanction either under section 195 or any other provisions of the Code of Criminal Procedure for initiation of prosecution. Hence the contention that the prosecution for offences under the Indian Penal Code was not permissible because there was no sanction for such prosecution under section 279(1) of the Income Tax Act, 1961, could not be countenanced.
9. section 279(1) of the Income Tax Act, as it stood before the amendment by the Finance Act, 1988 was as follows:—
“A person shall not be proceeded against for an offence under section 275A, section 276A, section 276AA, section 276B, section 276C, section 276CC, section 276D, section 276DD, section 276E, section 277, section 278, or section 278A except at the instance of the Chief Commissioner or Commissioner.”
But under the amended section 279(1), substituted by the Finance Act, 1988, which came into force on 1.4.89:—
“A person shall not be proceeded against for an offence under section 275A, section 276, section 276A, section 276B, section 276BB, section 276C, section 276CC, section 276D, section 277 or section 278 except with the previous sanction of the Chief Commissioner or Director General or Commissioner:
Provided that no such sanction shall be required if the prosecution is at the instance of the Commissioner (Appeals) or the appropriate authority.
Explanation.— For the purposes of this section ‘appropriate authority’ shall have the same meaning as in clause (c) of section 269UA.”
10. The relevant petition of complaint against the accused petitioner was filed on 26.3.93 after the said amended provision of section 279(1) came into force. The said petition of complaint was filed by the Income Tax Officer, Comp. Ward 2(2), Calcutta, being authorised by the Commissioner of Income Tax, W.B III, Calcutta, under the relevant authorisation issued under the old section 279(1) of the Income Tax Act.
11. The learned Advocate for the petitioner relies on a judgment reported in 1994 Cal. Cr. L.R page 79 and submits that the relevant petition of complaint was filed on the basis of the aforesaid authorisation issued in terms of the old section 279(1) of the Income Tax Act, which was no longer in force while the same had been filed before the court. No previous sanction in terms of the amended section 279(1) of the Income Tax Act was obtained for the purpose of filing the instant petition of complaint. The aforesaid relevant prosecution was neither at the instance of the Commissioner (Appeals) nor the ‘Appropriate Authority’ within the meaning of clause (c) of section 269UA. The accused petitioner was prosecuted on 26.3.93 without the previous sanction of the Chief Commissioner or Director General or Commissioner in terms of the amended provisions of section 279(1) of the said Act. So it was submitted by the petitioner's learned Advocate that the relevant authorisation under old section 279(1) of the Income Tax Act by the Commissioner cannot be deemed to be previous sanction within the meaning of the amended section 279(1) as aforesaid, which had come into force with effect from 1.4.89 According to him the prosecution of the accused petitioner in the circumstances stated above is clearly incompetent and so the same is liable to be quashed.
12. I have carefully gone through the amended provision of section 279(1) of the Income Tax Act which came into force with effect from 1.4.89 From a careful reading of the amended section of 279(1) of the Act it becomes evident that for prosecution of offences under certain sections of the Income Tax Act previous sanction is required from the Chief Commissioner or Director General or the Commissioner of Income Tax. But section 276DD does not find place, since it has already been omitted, in the amended section 279(1). So, the question of obtaining any sanction under the amended section 279(1) of the Act for prosecution under section 276DD does not arise at all. In my opinion the judgment cited by the learned Advocate of the petitioner (1994 Cal. Cr. L.R page 79) does not have any manner of application in this case. In that judgment, it is found, the prosecution was under section 276C and section 277 of the Act, which are very much included in the amended section 279(1) of the Act. So, the question of obtaining previous sanction for prosecution of offences under section 276C and 277 of the Act was taken into consideration in that judgment. But in the present case when the said section 276DD is not mentioned in amended section 279(1), the question of obtaining any previous sanction under the amended section 279(1) for prosecution under section 276DD does not arise at all.
13. Considering the facts and circumstances of the case I am inclined to follow the two judgments of Punjab & Haryana High Court reported in 209 I.T.R 290 and 210 I.T.R 427. There is no doubt that section 276DD of the Income Tax Act was omitted with effect from 1.4.89 and that at the point of time when the petition of complaint was filed the provision of section 276DD was no longer in force. But in the instant case contravention was alleged to have been made by the petitioner in the year 1987-1988. Unless a different intention appears, the repeal does not affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty etc. Section 276DD was very much in operation at the time when the payments were alleged to have been accepted by the petitioner and subsequent repeal of the section will not exonerate the petitioner of the violation, if any committed.
14. In my opinion, there is nothing wrong with the lodging of the complaint by the Income Tax Officer, Comp. Ward 2(2), Calcutta, with the authorisation under section 279(1) of the Income Tax Act, 1961. The allegations made in the petition of complaint prima facie make out a case against the petitioner. I find that the revisional application is without any merit and accordingly the same is dismissed.
15. Since similar point is involved in other four applications, this judgment will also govern the other four Criminal Revisional Applications being Case Nos. C.R.R 591 to 594 of 1998 and those are also hereby dismissed.
Revisional applications dismissed.
J.N.H