9911796707
TMI Blog2000 (4) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... ew Delhi, on March 31, 1992, and the order dated March 2, 1998, passed by the learned ACMM dismissing the petitioner's application under section 245(2) of the Criminal Procedure Code, seeking discharge. Besides the said two respondents, the Union of India has also been impleaded as pro forma respondent No. 1. The petitioner-firm was awarded two contracts, one by the Air India and another by one Modipon. The petitioners, in turn, assigned the contract awarded by Air India to one Salwan Construction Company Private Limited, against which it was entitled to receive commission at 2.5 per cent. of the receipts. The other contract was also assigned in favour of one Amarjit Singh, Hindu undivided family, and the petitioner-firm was entitled to receive commission at 5 per cent. from the said concern. The gross receipts from the contracts assigned by Air India and Modipon were respectively, Rs. 2,93,61,361 and Rs. 4,37,520. According to the Assessing Officer, the petitioners, being the contractor, was required to deduct under section 194C(1) of the Act tax at source on the said amounts received by the said assignees as sub-contractors, which it failed to do. Rejecting the stand of the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be made liable for parallel criminal proceedings on the same set of facts. However, these pleas did not find favour with the learned ACMM, who accordingly dismissed the application. Hence, this petition. I have heard Mr. O. S. Bajpai, learned counsel for the petitioners, and Mr. R. D. jolly, learned counsel for the respondents. It is strenuously contended by learned counsel for the petitioners that after the insertion of new section 276B with effect from April 1, 1989, irrespective of the period of default, no complaint for failure to deduct tax at source could be filed under the said section, especially when there is no saving clause even to sustain the pending prosecutions. In support of the argument, reliance is placed on the decisions of the Supreme Court in Rayola Corporation (P.) Ltd. v. Director of Enforcement [1970] AIR 1970 SC 494 ; T. Barai v. Henry Ah Hoe [1983] AIR 1983 SC 150, and the decisions of the Madhya Pradesh and Andhra Pradesh High Courts respectively reported as Harikishan v. Union of India [1996] 217 ITR 582 (MP) ; Patiram Jain v. Union o f India [1997] 225 ITR 409 (MP) ; Asst. CIT v. Vijaya [1998] 231 ITR 137 (AP). On the merits it is urged that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les can only offer protection to action already taken while the rule was in force, but cannot justify initiation of new proceedings, which will not be a thing done or omitted to be done under the rule but a new act of initiating a proceeding after the rule has ceased to exist. It was also held that section 6 of the General Clauses Act could not apply on the "omission" of rule 132A of the Defence of India Rules for the obvious reason that section 6 only applies to "repeals" and not to "omissions". The scope and effect of section 6 of the General Clauses Act recently came up for consideration before the Constitution Bench of the Supreme court in Kolhapur Canesugar Works Ltd. v. Union of India [2000] AIR 2000 SC 811 ; [2000] 2 SCC 536. In that case, the court was considering the question whether after the omission of old rules 10 and 10A of the Central Excise Rules and their substitution by new rule 10 vide notification dated August 6, 1977, the proceedings initiated by notice dated April 27, 1997, could be continued in law. While holding that section 6 was not applicable in that situation, their Lordships, while affirming the principles of law laid down in Rayala Corporation (P.) L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the Legislature is that the pending proceeding sit all not continue but a fresh proceeding for the same purpose may be initiated under the new provision. " In the light of the aforenoted settled legal position with regard to the applicability of section 6 of the General Clauses Act to a provision which has been omitted, it is evident from the plain language of the old and new section 276B, extracted below, that the amended section "substituted" by the Direct Tax Laws (Amendment) Act, 1987, is not by way of a repeal of the old section. The term "repeal" connotes the abrogation of one Act by another, whereas the "amendment" of a statute means an alteration in the law existing, leaving some part of the original still standing. As noted above, in the present case, it is merely an omission of a part of the old section in the newly substituted provision. Old provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same to the credit of the Central Government. From the contents of the aforenoted two provisions of law it is evident that it does not contain any saving clause for initiating proceedings under the old section after it has been amended/omitted for the default of failure to deduct tax at source. Besides, it could be reasonably inferred from the intention behind the new provision, that fresh proceedings, if any, under section 276B of the Act after April 1, 1989, have to be initiated only in accordance with the new provision. In view of the foregoing discussion, I have no hesitation in holding that the complaints filed on March 31, 1992, under section 276B of the Act for failure on the part of the petitioner-firm to deduct tax at source are clearly not maintainable and deserve to be quashed. I order accordingly. I may, however, hasten to add that in this judgment I have not examined the question of survival of those prosecution proceedings which were already initiated before the insertion of the new section, because that issue does not arise in the present case. Since the petitioners succeed on the aforenoted main ground, it is not necessary to go into the question whether ..... X X X X Extracts X X X X X X X X Extracts X X X X
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