Govind Mathur, J.
1. By this writ petition, a challenge is given by the petitioner to proposal to launch prosecution under Section 276B of IT Act, 1961, for failure on part of petitioner to deduct tax at source in terms of Section 194A of the Act of 1961. Notices impugned are placed on record as Annexs. 13, 14 and 15, all dt. 27th March, 1991. An amendment was introduced to Section 276B of the Act of 1961 which came into force on 1st April, 1989. Section 276B as it was prior to 1st April, 1989, reads as under:
'276B. Failure to deduct or pay tax.--If a person fails to deduct or, after deducting, fails to pay the tax as required by or under the provisions of Sub-section (9) of Section 80E or Chapter XVII-B, he shall be punishable,--
(a) in a case where the amount of tax which he has failed to deduct or pay exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;
(b) in any other case, with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and with fine.'
As a consequence of amendment to Section 276B words, 'failure to deduct' were deleted and Section 276B after amendment reads as under:'276B. Failure to pay the tax deducted at source.--If a person fails to pay to the credit of the Central Government, the tax deducted at source by him as required by or under the provisions of Chapter XVII-B he shall be punishable with rigorous imprisonment for a term which shall not be less than three months but which may extend to seven years and with fine.'
2. It is stated by the counsel for the petitioner that omission of the words 'failure to deduct' shows that legislature wants to ignore trivial offences like failure to deduct tax at source and, therefore, the petitioner is not liable for prosecution as launched by the impugned notices. The contention of the counsel for the petitioner is fortified by Division Bench's judgment of this Court in the case of Anantraj Joshi & Co and Ors. v. CIT and Ors. The Division Bench of this Court in the case of Anantiaj Joshi & Co. and Ors. (supra) while relying upon the judgment of Hon'ble apex Court held as under:
'4. Section 271 deals with consequential failure to furnish returns, comply with notices and concealment of income, etc. Sub-clause (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 w.e.f. 1st April, 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 (7) SCC 1.
5. 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 the complaint Nos. 160/86 and 161/86 pending in the Court of Chief Judicial Magistrate (Economic Offences) Rajasthan, Jaipur, is quashed.'
3. The counsel appearing on behalf of the respondent IT Department does not dispute the position. Looking to the law laid down by the Division Bench the impugned proposal to launch prosecution under the notices dt. 27th March, 1991 Annexs. 13, 14 and 15 is hereby quashed. The writ petition is disposed of accordingly.