R.M. Sahai, J. - (1.) THE validity of Section 279 of the Income-tax Act empowering the Commissioner to initiate prosecution has been challenged. In the alternative, it is urged that since a reference is pending in this court, the action of the Commissioner is arbitrary. Reliance has also been placed on Sub-clause (i) of Clause 8 of the circular issued by the Government of India that as per the Board's existing guidelines, no proceedings be initiated against the assessee if he was aged seventy years and above.
(2.) HAVING heard learned counsel for the parties at length, we consider it unnecessary either to decide the validity of the section or the legal question, if the proceedings could be initiated during reference, as we are of the opinion that in case the last submission that the petitioner was aged 70 years was correct, then the proceedings should be dropped. But that is a question of fact which can be effectively decided by the Magistrate himself. Therefore, we decide this petition by directing the Chief Judicial Magistrate to frame a preliminary issue on this aspect, permit the petitioner and the Department to lead evidence on it and in case he comes to the conclusion that the petitioner was aged more than 70 years, then he may drop the proceedings. The application may be disposed of expeditiously, if possible, within three months from the date on which a copy of this order is produced. Till decision is given by the Special Chief Judicial Magistrate, the petitioner shall not be arrested provided he does not absent himself and cooperates with the Special Chief Judicial Magistrate in the disposal of the proceedings.
(3.) COPY of this order may be given to teamed counsel for the petitioner on filing proper application within a week.;