M/S. Imp Powers Ltd. & Ors v. Dy. Commissioner Of Income Tax & Anr.…

ssk 1/3 WP 2830 2831 & 2832/15-22/2/17 IN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 2830 OF 2015 M/s. IMP Powers Ltd. & ors. … Petitioners vs. Dy. Commissioner of Income Tax & anr.… Respondents Mr. Amit Desai, Senior Advocate a/w Vrishali Raje, Advocate for the petitioners. Mr. S. R. Agarkar, A.P.P. for the State/respondent no.1. Mr. Suresh Kumar, Advocate for respondent no.2. WITH WRIT PETITION NO. 2831 OF 2015 M/s. IMP Powers Ltd. & ors. … Petitioners vs. Dy. Commissioner of Income Tax & anr.… Respondents Mr. Amit Desai, Senior Advocate a/w Mr. Pawan Mali, Advocate for the petitioners. Mr. S. R. Agarkar, A.P.P. for the State/respondent no.1. Mr. Suresh Kumar, Advocate for respondent no.2. WITH WRIT PETITION NO. 2832 OF 2015 M/s. IMP Powers Ltd. & ors. vs. Dy. Commissioner of Income Tax & anr. … Petitioners … Respondents Mr. Amit Desai, Senior Advocate a/w Mr. Pawan Mali, Advocate for the petitioners. Mr. S. R. Agarkar, A.P.P. for the State/respondent no.1. Mr. Suresh Kumar, Advocate for respondent no.2. ssk 2/3 WP 2830 2831 & 2832/15-22/2/17 Coram : Smt. R. P. SondurBaldota, J.Date : 22[nd] February, 2017 P.C. : 1.The above three petitions filed by the samepetitioner challenge the common order dated 14[th] May,2015 passed by the trial Court i.e. Additional ChiefMetropolitan Magistrate, 38[th] Court, Ballard Pier, Mumbairejecting the petitioner’s application at Ex.4 for dropping ofthe proceedings in view of the decision of the Apex Court inM/s. General Finance Co. vs. Assistant Commissionerof Income Tax reported in AIR 2002 SC 3126. 2.The petitioners are accused in CC No. 583/SW of2013 (old number 883/S/1991) for prosecution underSection 276DD and 278B of the Income Tax Act filed in theyear 1991. Section 276DD of the Income Tax Act has beenomitted by Direct Taxes Law Amendment Act, 1987, witheffect from 1[st] April, 1989 without any savings clause. TheApex Court by the decision cited has held that “In theIncome Tax Act Section 276Dd stood omitted from the Actbut not repealed and hence a prosecution could not havebeen launched or continued by invoking Section 6 of theGeneral Clauses Act after it’s omission.” 3.The difficulty expressed by the trial court in theimpugned order even in the face of the decision of the ApexCourt is of it's power and authority to drop the proceedingsin view of issuance of summons. At para 6 of the impugned ssk 3/3 WP 2830 2831 & 2832/15-22/2/17order, while agreeing with the submissions on behalf of thepetitioners that in view of omission of Section 276DD fromthe Income Tax Act, the prosecution of the petitionerregarding offence punishable under Section 276DD cannotbe launched or continued, the learned Judge has expressedhis difficulty by stating that process has already beenissued. The proceedings have been tried as summons case,plea of the petitioners is recorded and the evidence started.In these circumstances now the order of quashing of theproceedings is required to be passed by this Court. Hence,the petitions are allowed in terms of prayer clause (b). [Smt. R. P. SondurBaldota, J.]