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TMI Blog2023 (4) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... ly be prosecuted is subject to Clause 4 in the said circular which states that notwithstanding the other provisions, the Commissioner of Income Tax (CIT) can sanction the prosecution keeping in view the nature and magnitude of the offence. HELD THAT:- The general rule that persons above 70 years cannot be prosecuted is subject to exceptions and in this case, the Commissioner of Income Tax (CIT) considered that this is a fit case for launching prosecution. The other submission of the learned counsel for the petitioners is that there is no averment to show as to how petitioners are either principal officer or persons in charge of and responsible for the conduct of the business of the company. This Court finds that this issue was decided by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is alleged in the complaints that the first petitioner had deducted TDS from the payments made to various parties. However, after deducting the tax at source, the petitioners failed to deposit the tax to the credit of the Central Government within the prescribed time. The impugned complaints pertain to three different Assessment Years. It is alleged that in all the three Assessment Years, the petitioners had delayed the deposit of tax deducted at sources and therefore, they were liable for offence under Section 276 B r/w 278 B of the Income Tax Act. 3. The learned counsel for the petitioners would submit that the second and third petitioners are aged above 70 years. He pointed out to the Central Board of Direct Taxes (CBDT) instructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated and the impugned complaints insofar as the petitioners are concerned may be quashed. 4. Mr.V.J.Arul Raj, the learned Special Public Prosecutor appearing for the Income Tax Department would submit that the Department had issued a subsequent circular on 24.04.2008 stating that the instruction that a person above 70 years shall not ordinarily be prosecuted is subject to Clause 4 in the said circular which states that notwithstanding the other provisions, the Commissioner of Income Tax (CIT) can sanction the prosecution keeping in view the nature and magnitude of the offence. He submitted that in this case the Commissioner of Income Tax considering the nature and magnitude of the offence had sanctioned the prosecution against the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall not ordinarily be processed for launching prosecution for any offence, if the individual concerned has attained the age of 70 years at the time of commission of the offence. 4. Notwithstanding anything contained in this procedure, prosecution under relevant provisions of Direct tax laws shall be launched in all cases where: (a) The offence involves major fraud or scam or misappropriation of government funds or public property or; (b) The assessee is linked to any antinational/ terrorist activity and cases being investigated by CBI, Police, Enforcement Directorate or any other Central Government, agencies; or (c) The assessee has enabled others in large-scale concealment of income; or (d) Any other case, where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... propriate order can be passed at the trial. 7. Hence, this Court is of the view that the points raised by the petitioners have to be adjudicated only before the trial Court. The petitioners 2 and 3 are at liberty to submit before the trial Court that their case would not fall within the exceptions and that they are entitled to the benefit of the circular which restricts initiation of prosecution against persons above 70 years of age. It is needless to say that they would also be entitled to show that they were not in charge and responsible to the company for the conduct of its business, before the trial Court. Therefore, this Court is not inclined to entertain these petitions. 8. Since the petitioners 2 and 3 are admittedly aged abo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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