TMI Blog2006 (12) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... e Additional Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai whereby accused No.1 to 4 were discharged from the prosecution which was launched by Income Tax Department under section.276-B read with 278-B of Income Tax Act, 1961. 3. The brief facts which are relevant for the purpose of deciding this application are as under : 4. Forty complaints were filed against the respondents Nos. 1 to 3 and original accused No.4 under section.276-B read with 278-B of Income Tax Act for not making the payment of tax deducted at source within prescribed time to the credit of Central Government. In these cases, application for discharge was filed by all the accused and it was contended that the amount in question was duly paid by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of prosecution where the punishment is more than three years. He further submitted that punishment prescribed for the offence punishable under section.276-B was upto seven years and therefore, provisions of Section 468 of Cr. P.C. would not apply to the facts of present case. He submitted that ratio of the judgment in C.B. Gautam V/s. Union of India (Supra) would not apply to the facts of present case since in the said case Supreme Court had construed the provisions of Income Tax Act and had observed that notice had to be issued to assessee before imposing civil liability. He further submitted that said ratio would not apply to the case where criminal prosecution was launched against the accused. He further relied on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment." 7. A perusal of the aforesaid provisions clearly indicates that where the punishment prescribed under the Act is beyond three years, provisions of Section 468 of Cr. P.C. would not apply to such cases. In the present case, prosecution is launched U/s.276-B wherein punishment prescribed is upto seven years. Learned Additional Chief Metropolitan Magistrate therefore, erred in holding that there was delay in filing complaint. He also erred in holding that notice was not issued to the respondents and on that ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed either a show cause notice should be given or an opportunity afforded to compound the matter. The enabling provision cannot give a right to a party to insist on the Chief Commissioner or the Director General to make an offer of compounding before the prosecution is launched." 9. In my view ratio of the said judgment clearly applies to the facts of the present case. 10. Allegation against respondents are very serious. It is alleged that after having deducted tax at source, they had kept this amount with themselves and only after this fact is pointed out to them after amounts were scrutinized they thereafter paid that amount. Thus, there was delay of merely 4 years, 11 months and 24 days in making the payment. Nature of the offen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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