Law:

Section:

Section 276B of the Income-tax Act, 1961 - Offences and prosecutions - Failure to deduct or pay tax - Whether a complaint filed under section 276B in substance by ITO though erroneously in name of the Union of India would be valid - Held, yes Section 279 of the Income-tax Act, 1961 - Offences and prosecutions - Prosecution to be at instance of Commissioner - Whether a complaint filed by ITO under direction of Commissioner could be validly said to have been filed at instance of Commissioner - Held, yes Facts The ITO filed a complaint against the petitioners under section 276B and under section 420 read with sections 511, 120B and 34 of the Indian Penal Code. On the basis of the said complaint a criminal case was registered and the order for issue of process against the petitioners was passed. The petitioners appeared in obedience to the process and filed an application objecting to the complaint on the ground that the offence under section 276B as provided by section 279A was non-cognizable and the name of the Union of India could not be used. It was further urged that the prosecution of the petitioners was incompetent as there was no authority for the same as required under section 279. The Additional Chief Judicial Magistrate, Economic Offences, dismissed the objections. On revision petition : Held In the decision in T.S. Baliah v. T.S. Rangachari, ITO AIR 1969 SC 701 the expression 'at his instance' occurring in section 53 of the Indian Income-tax Act, 1922, had been interpreted. Therein it has been held that it is not necessary that the complaint petition itself must be filed by the IAC and complaint by the ITO, on being authorised by the IAC, is not illegal. In certain cases, the law provides that sanction, permission or authority shall constitute precondition for prosecution. There is difference between authority and direction. When a person is authorised to do it he has the permission to do it, when a person is directed to do a particular act there is no question of permission and he is commanded to do it. In the instant case, it was clear from a perusal of the order of the Commissioner that he had directed the ITO to file the complaint at his instance.…

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