TMI Blog2007 (8) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure, 1973 (Cr.P.C.) to challenge the order dated 5th May, 2007 passed by the learned Additional Chief Metropolitan Magistrate (47 th Court), Esplanade, Mumbai rejecting the prayer for discharge of the accused in Case Nos.5474/1990 to 5836/1990. Factual Matrix : 3. Applicant No.1 was a partnership firm carrying on business as Civil Contractors, whereas applicant No.2 (since deceased) and applicant No.3 were the partners thereof. The applicants have contended that during the previous years relevant to the assessment years 1984-85 and 1985-86, applicant No.1 made interest payments to various parties who were its creditors. Such interest payments to some of the parties were more than Rs.1,000/- in aggregate, in a single previou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch failure to deduct tax was an offence when the interest payments were effected. It was also the contention of the Revenue that such a prosecution was saved by section 6 of the General Clauses Act. 7. The said discharge application was finally heard on 27th April, 2007 and rejected by the impugned order dated 5th May, 2007. Submissions : 8. Mr.Sathe, learned senior counsel for the applicants submits that the amendment to section 276B of the Income Tax Act with effect from 1 st April, 1989 amounted to "omission" and not "repeal". He submits that section 6 of the General Clauses Act is applicable to repeal and not to omission. 9. Mr. Sathe pointed out that the present prosecution was launched on 28 th February, 1990 when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f tax which he has failed to deduct or pay exceeds one hundred thousands rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine; (ii) in any other case, with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and with fine. Section 276B ( from September 10, 1986 but prior to April 1, 1989 ) Failure to deduct or pay tax. ___ If a person, fails to deduct or after deducting, fails to pay the tax as required by or under the provisions of sub-section (9) of section 80E or Chapter XVII-B, he shall be punishable,- (i) in a case where the amount of tax which he has failed to dedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only to repeal and not to omission. Whenever any provision/ rule is omitted, all actions under the omitted rule/ provision must stop where the omission finds them. 14. General Finance Co. v. Asst. C.I.T., (2002) 257 ITR 338 (SC), it was held by the Apex Court that section 276DD was omitted with effect from 1 st April, 1989 and hence complaints which were filed prior to the omission could not be proceeded with since section 6 of the General Clauses Act applied only to repeal and not to omission. 15. In Salwan Constructions Co. v. Union of India, (2000) 245 ITR 175 (Del), it was observed by the Delhi High Court that "Repeal" connotes the abrogation of one Act by another, whereas "amendment" of a statute means an alteration in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution, admittedly, was launched on 28 th February, 1990 when failure to deduct tax was no longer an offence. None of the judgments cited by Mr. Kango deals with issue involved in the case on hand. 19. Since the change in section 276B amounts to an "omission", all actions under the omitted part should stop at the point where the omission finds them and hence the present prosecution is not maintainable. 20. In the circumstances, the impugned order dated 5 th May, 2007 passed by the learned Magistrate on the discharge application taken out in Case Nos.5474/1990 to 5836/1990 is liable to be quashed and set aside. 21. In the result, revision application is allowed. Rule is made absolute in terms of prayer clause (a) with no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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