N.N. Mathur, J. - (1.) THIS special appeal is directed against the judgment or the learned single judge dated December 14, 1994, whereby the learned single judge dismissed the writ petition in limine.
(2.) BRIEFLY stated the facts of the case are that the appellant, original petitioner No. 1, M/s. Anantrai Joshi and Co., is a partnership firm. The said firm did not file its return of income for the assessment year 1982-83, which was due to be filed on or before June 30, 1982, as required by the provisions of Section 139(1) of the Income-tax Act, 1961. The return was filed on June 20, 1983, declaring its income at Rs. 93,327.65. No explanation was given by the assessee for the late filing of the return. The assessment was made and a demand notice for depositing a sum of Rs. 13,307 was issued. It is alleged that as the appellant-assessee failed to file the return within the stipulated period under the provisions of Sub-section (1) of Section 139 of the Income-tax Act it were liable to be prosecuted for offence under Section 276CC read with Section 278B of the Income-tax Act It is not in dispute that the Deputy Commissioner (CIT), Jodhpur, has deleted the penalty for the assessment year 1984-85 by order dated March 18, 1994. It is submitted by learned counsel that the provisions of Section 139(1) and (2) have been omitted and as such the prosecution cannot further continue. He has placed reliance on a decision of the apex court in General Finance Co. v. Asst. CIT [2002] 257 ITR 338. Section 271 deals with consequential failure to furnish returns, comply with notices and concealment of income, etc. Sub-section (1)(a) as it stood prior to 1989 is extracted as follows : "(a) has failed to furnish the return of total income which he was required to furnish under Sub-section (1) of Section 139 or by notice given under Sub-section (2) of Section 139 or Section 148 or has failed to furnish it within the time allowed and in the manner required by Sub-section (1) of Section 139 or by such notice, as the case may be, or" The Direct Tax Laws (Amendment) Act, 1989, omitted the aforesaid provision with effect from April 1, 1989. It is significant to notice that the omission of a provision results into an abrogation or obliteration of the omitted provision. The effect of omission in the present context is that the prosecution with respect to an offence of the year 1982-83 cannot be continued. This view has been taken by the apex court in the case of General Finance Co. [2002] 257 ITR 338. In view of the aforesaid, we allow this special appeal and set aside the judgment of the learned single judge. The writ petition is allowed and Complaints Nos. 160 of 1986 and 161 of 1986 pending in the Court of Chief Judicial Magistrate (Economic Offences), Rajasthan, Jaipur, are quashed. ;