Allahabad H.C : The validity of s. 279 of the IT Act empowering the CIT to initiate prosecution has been challenged.

High Court Of Allahabad

Kishan Lal vs. Union Of India & Ors.

Section Art. 226, 279

R.M. Sahai & Om Prakash, JJ.

Civil Misc. Writ Petn. No. Nil of 1989

17th March, 1989

R. M. SAHAI, J.:

The validity of s. 279 of the IT Act empowering the CIT to initiate prosecution has been challenged. In the alternative, it is urged that since a reference is pending in this Court, the action of the CIT is arbitrary. Reliance has also been placed on sub-cl. (i) of cl. 8 of the circular issued by the Government of India that as per the Board’s existing guidelines, no proceedings be initiated against the assessee if he was aged seventy years and above.

Having heard learned counsel for the parties at length, we consider it unnecessary either to decide the validity of the section or the legal question, if the proceedings could be initiated during reference, as we are of the opinion that in case the last submission that the petitioner was aged 70 years was correct, then the proceedings should be dropped. But that is a question of fact which can be effectively decided by the Magistrate himself.

Therefore, we decide this petition by directing the Chief Judicial Magistrate to frame a preliminary issue on this aspect, permit the petitioner and the Department to lead evidence on it and in case he comes to the conclusion that the petitioner was aged more than 70 years, then he may drop the proceedings. The application may be disposed of expeditiously, if possible, within three months from the date on which a copy of this order is produced. Till decision is given by the Special Chief Judicial Magistrate, the petitioner shall not be arrested provided he does not absent himself and cooperates with the Special Judicial Magistrate in the disposal of the proceedings.

[Citation : 179 ITR 206]

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