Procedure for launching Prosecution involving offences punishable under sections 276B, 276BB, and under sections 277, 278 in relation to sections 276B, 276BB - Income Tax - F.No 285/90/20O8-IT(lnv.)/137

F.No 285/90/2008-IT(lnv.)/137 Government of India. Ministry of Finance, Department of Revenue, Central Board of Direct Taxes Ground Floor, ARA Centre, E-2,Jhandewalan Extn., New Delhi- 110055. Dated: 18.01.2012 . To All CCsIT(CCA)s/DGsIT/CCsIT(Central) Sir/Madam, Sub:- Procedure for launching Prosecution involving offences punishable under sections 276B, 276BB, and under sections 277, 278 in relation to sections 276B, 276BB- clarifications Chapter-Ill of the Prosecution Manual 2009 published by the Directorate of Income Tax(PR, PP 0L) contains the procedure, in detail, for launching prosecution. Paragraph 4 of this Chapter contains the steps for launching prosecution, important aspects regarding preparation of the proposal for prosecution and safeguards in granting sanction for prosecution u/s 279(1) of the Income Tax Act, 1961 (the Act). No distinction has been made in paragraph 4 of this Chapter about the procedure of launching of prosecution for offences committed under various section. 2. CBDTs attention is drawn by the field formation about clause (f) of paragraph 4.1 of Chapter-III, which reads as under: If no reply is received or on consideration of reply, it is found to be a fit case to proceed further, then CIT shall seek opinion of the Prosecution Counsel. Clarification has been sought as to whether CIT has to mandatorily seek the opinion of the Prosecution Counsel in each and every case, even if the case involves offences punishable under sections 276B, 276BB, and under sections 277, 278 in relation to sections 276B, 276BB, before according sanction u/s 279(1) of the Act. 3. The matter has been examined. Considering that the offences punishable under sections 276B, 276BB and under sections 277, 278 in relation to sections 276B, 276BB are primarily based on relevant facts relating to the default committed by the person concerned and that these sections do not contain the word wilfully i.e. involve defaults which are technical in nature, the Board has decided that in such cases the opinion of Prosecution Counsel at the stage of passing of sanction order u/s 279(1) need not be mandatorily taken. However, the CIT concerned, while concluding that it is a fit case for launching prosecution and before according his sanction u/s 279(1) of the Act, may : (a) In terms of section 278B read with section 2(35) of the Act, Identify relevant person(s) as Principal Officer of the deductor company /firm/AOP etc. and (b) In terms of provisions of section 278AA of the Act, overrule the claim, if any, about existence of reasonable cause for the failure. These changes may be brought to the notice of all concerned. Yours faithfully, (Amaresh Singh) Director (Inv.)-V CBDT, New Delhi