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2023 (4) TMI 900 - HC - Income TaxOffence u/s 276 B r/w 278 B - after deducting the tax at source, the petitioners failed to deposit the tax to the credit of the Central Government within the prescribed time - Proceedings against the company and Persons aged above 70 years - Department had issued a circular stating that the instruction that a person above 70 years shall not ordinarily be prosecuted is subject to Clause 4 in the said circular which states that notwithstanding the other provisions, the Commissioner of Income Tax (CIT) can sanction the prosecution keeping in view the nature and magnitude of the offence. HELD THAT:- The general rule that persons above 70 years cannot be prosecuted is subject to exceptions and in this case, the Commissioner of Income Tax (CIT) considered that this is a fit case for launching prosecution. The other submission of the learned counsel for the petitioners is that there is no averment to show as to how petitioners are either principal officer or persons in charge of and responsible for the conduct of the business of the company. This Court finds that this issue was decided by the Honourable Apex Court in Madhumilan Syntex Ltd., and others vs. Union of India and another [2007 (3) TMI 670 - SUPREME COURT]. Hence, this Court is of the view that the points raised by the petitioners have to be adjudicated only before the trial Court. The petitioners 2 and 3 are at liberty to submit before the trial Court that their case would not fall within the exceptions and that they are entitled to the benefit of the circular which restricts initiation of prosecution against persons above 70 years of age. It is needless to say that they would also be entitled to show that they were not in charge and responsible to the company for the conduct of its business, before the trial Court. Therefore, this Court is not inclined to entertain these petitions. Since the petitioners 2 and 3 are admittedly aged above 70 years, their appearance before the trial Court is dispensed with unless, the learned Magistrate considers their appearance necessary for the progress of the Trial. Criminal Original Petitions are dismissed
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