The provisions of section 468 of the Criminal Procedure Code do not apply when the punishment prescribed under the Act is beyond three years. Notice is not required to be given to the accused before launching prosecution under the Income Tax Act, and the compounding of offences can be done either before or after the institution of proceedings.

ORAL JUDGMENT :- Heard learned counsel for the petitioner. None appears for the respondents though they are served. Respondent No.4 however was deleted from the array of parties by the petitioner.

2. The petitioner is challenging the judgment and order passed by the Additional Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai whereby accused No. 1 to 4 were discharged from the prosecution which was launched by Income Tax Department under section 276-B read with 278-B of Income Tax Act.

2A. Brief facts which are relevant for the purpose of deciding this application are as under :-

Forty complaints were filed against the respondents Nos. 1 to 3 and original accused No.4 under section 276-B read with 278-B of Income Tax Act for not making the payment of tax deducted at source within prescribed time to the credit of Central Government. In these cases, application for discharge was filed by all the accused and it was contended that the amount in question was duly paid by the accused after it was brought to their notice. It is further contended that so far as payment of interest is concerned matter was remanded back to the Assessing Officer by the Income Tax Appellate Tribunal with a direction to give re-hearing in the matter and pass an order in accordance with law. It was submitted that Assessing Officer had power to condone delay in making payment and therefore there was no question of prosecuting accused under the aforesaid provisions. It was also contended that there was delay of 10 years in filing the complaint.

3. Learned Additional Chief Metropolitan Magistrate allowed the discharge application filed by the accused and discharged from the same prosecution. Trial Court has held that there was delay of 10 years in initiating prosecution and therefore, further held that no notice was issued before launching the prosecution. He further held that it was necessary to issue notice to the accused before launching prosecution and also to give personal hearing and if such personal hearing is not given prosecution would not be sustainable. He relied on the judgment of Supreme Court in the case of C. B. Gautam vs. Union of India, reported in 199 I. T.R. 530 (SC). Learned counsel for the petitioner submitted that accused had continuously committed an offence in not depositing the amount and therefore question of delay did not arise as it was continuous offence. He further submitted that period of limitation would not apply to the case of prosecution where the punishment is more than three years. He further submitted that punishment prescribed for the offence punishable under section 276-B was upto seven years and therefore, provisions of section 468 of Criminal Procedure Code would not apply to the facts of present case. He submitted that ratio of the judgment in C. B. Gautam vs. Union of India (Supra) would not apply to the facts of present case since in the said case Supreme Court had construed the provisions of Income Tax Act and had observed that notice had to be issued to assessee before imposing civil liability. He further submitted that said ratio would not apply to the case where criminal prosecution was launched against the accused. He further relied on the judgment of Supreme Court in the case of Union of India vs. Banwari Lal Agarwal, reported in AIR 1999 SC 196 wherein Supreme Court has held that giving of prior notice or opportunity of hearing would not necessary as that could be done after the institution of proceedings. Though respondents were served, none appears for the respondents. Respondent No.4 is deleted from the array of parties and therefore, order of discharge has been confirmed so far as respondent No.4 is concerned.

4. I have given anxious consideration to the submissions led by the learned counsel for the petitioner. In my view, submissions made by the learned counsel for the petitioner will have to be accepted. Learned Additional Chief Metropolitan Magistrate has erred in holding that there was 10

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