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TMI Blog1993 (10) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961. The accused is an individual engaged in tailoring business. He had filed a return of income on August 29, 1980, for the assessment year 1980-81 admitting a total income of Rs. 20,870. The assessment was completed under section 143(3) on January 25, 1982, determining the total income of Rs. 26,170. After the assessment was completed, there was a search under section 132 of the Income-tax Act in the premises of the assessee on October 5, 1982. During the course of the search, incriminating documents were seized. With the evidence of those seized materials, the Assessing Officer concluded that there was income that had escaped assessment. The Assessing Officer sent a notice under section 148 of the Income-tax Act on March 9, 1984, to the accused, intimating the assessee about the escaped income. The assessee filed a return of income on October 3, 1985, declaring again an income of Rs. 20,870. He again filed a revised return of income on January 17, 1986, wherein he admitted a total income of Rs. 48,814. The Assessing Officer issued a notice under section 143(2) to the accused and gave him full opportunity of being heard. At the time of hearing, the scrutiny of the order book an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anction order, seven documents are referred to. The seventh document is dated September 27, 1988, that subsequent to that date, many relevant documents had come into existence and they are shown at page 91 of the typed set and the sanction order of the Commissioner, without looking into those documents subsequent to September 27, 1988, is not valid. (iv) The petitioner had filed a petition to the Chairman, Central Board of Direct Taxes, regarding reduction or waiver of penalty on April 4, 1988, and that was forwarded by him to the Chief Commissioner, Madras, and if he gets a favourable order, this prosecution would not lie. I have heard Mr. K. Ramasamy, standing counsel for the Income-tax Department, on the above aspects and I have carefully considered the submissions made by learned counsel. Submission No. (iv) : In P. Jayappan v. S. K. Perumal, First ITO [1984] 149 ITR 696, the apex court has held that the mere expectation of success in some proceedings in an appeal or a reference under the Income-tax Act cannot come in the way of the institution of criminal proceedings under sections 276C and 277 of the Act. So this submission will not hold good. Submission Nos. (i) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffences under this section." The section does not contemplate any notice to the accused. Mr. Ramasamy, learned counsel, would submit that the Act is a self-contained Act and wherever notice is required, it has been specifically stated so and in section 279 it is not so stated. He would submit that no notice is required to the person against whom prosecution is to be launched. He also pointed out that prior to the amendment, which came into effect from April 1, 1989, as per section 279(1), a person shall not be proceeded against for an offence under sections 275A, 276A, etc., except "at the instance of the Chief Commissioner or Commissioner" and after April 1, 1989, when the amendment came into effect, the present section 279(1) reads that a person shall not be proceeded against for an offence under sections 275A, 276, etc., except "with the previous sanction of the Commissioner or Commissioner (Appeals) or appropriate authority" and thus before launching the prosecution, the matter was being scrutinized by the highest officer in the hierarchy and thus there is an additional safeguard and beyond that, the section does not require any notice to the person against whom prosecution i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y should be given. So far as the provision under section 279 of the Act is concerned, the granting of a sanction, by itself, would not result in any punishment of the accused. Only for launching of prosecution, sanction was required. Then the matter is to be placed before the court and it is for the court to consider whether the offences are made out or not. The provision for sanction is only an additional safeguard against launching prosecution in all cases. Hence this ruling does not apply to the facts of the case before me. In Government of India v. Maxim A. Lobo [1991] 190 ITR 101, a Division Bench of this court had held that opportunity to be heard must be given before passing an order under section 269UD and that principles of natural justice must be followed. Neither is this ruling applicable to the facts of this case, for the reasons which I have given for not applying C. B. Gautam v. Union of India [1993] 199 ITR 530 (SC) to the facts of this case. On the ratio of the ruling Kalagava Bapiah, In re [1903] ILR 27 Mad 54 and Naresh Pran Jivan Mehta v. State of Maharashtra [1986] 61 STC 309 (Bom), I am of the view that no notice is required before passing an order of sanctio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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