Comparative Review of Non-Cognizable Offences in Indian Income Tax Legislation : Clause 492 of the Income Tax Bill, 2025 Vs. Section 279A of the Income-tax Act, 1961

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....s non-cognizable, overriding the Code of Criminal Procedure, 1973 (CrPC). Both provisions are situated within the broader framework of offences and prosecutions under income tax law, and their primary purpose is to delineate the procedural treatment of income tax offences in the context of criminal law enforcement. The classification of offences as cognizable or non-cognizable has profound procedural and substantive ramifications. Cognizable offences permit law enforcement authorities to arrest without a warrant and initiate investigations without the direction of a court, whereas non-cognizable offences require a warrant for arrest and prior sanction or order from a magistrate to investigate. By designating certain tax offences as non-cog....

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....he enforcement mechanism, the law aims to foster a more cooperative compliance environment. * Consistency with Criminal Law Reforms: The reference to BNSS, 2023 in Clause 492 reflects the legislative intent to align tax laws with the most current criminal procedure code, replacing the earlier reference to CrPC, 1973 in Section 279A. Historically, the classification of tax offences as non-cognizable was introduced in the mid-1970s (via the Taxation Laws (Amendment) Act, 1975) to address concerns over the misuse of prosecutorial powers and to bring greater procedural discipline to tax enforcement. The 2025 Bill continues this trajectory, updating the reference to contemporary criminal procedure legislation. Detailed Analysis of Clause 492....

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....d related conduct. The selection of these sections reflects a legislative judgment on which offences, though serious, should not attract the more stringent cognizable status. 3. Deemed Non-Cognizable The use of the phrase "shall be deemed to be non-cognizable" creates a legal fiction, mandating that, for all purposes under BNSS, these offences are to be treated as non-cognizable, regardless of their actual classification under the general law. This has the following consequences: * No Arrest Without Warrant: Police authorities cannot arrest an accused under these sections without a warrant issued by a magistrate. * No Investigation Without Magistrate's Order: Investigation into these offences cannot commence without the prior ord....

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....tion 279A references the Code of Criminal Procedure, 1973, whereas Clause 492 refers to the Bharatiya Nagarik Suraksha Sanhita, 2023. This update reflects the legislative transition to the new code. * Specified Offences: * Section 279A covers offences u/ss 276B, 276C, 276CC, 277, and 278 of the 1961 Act, which deal with failure to pay tax deducted at source, wilful attempt to evade tax, failure to furnish returns, making false statements, and abetment of false returns, respectively. * Clause 492 covers offences u/ss 476, 478, 479, 480, 482, and 484 of the 2025 Bill. While the numbering is different due to the new Bill, the substantive offences are likely to be analogous, though there may be differences in scope or content depending on....

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....licability of non-cognizable status. * Overlap with General Criminal Law: To the extent that tax offences may also constitute offences under general criminal law (e.g., fraud, forgery), questions may arise as to the interplay between the non-cognizable status under tax law and cognizable status under general law. * Judicial Discretion: The requirement for magistrate's sanction introduces a layer of judicial discretion, which could lead to variability in enforcement depending on judicial attitudes and local practices. * Potential for Delay: The procedural safeguards, while protective of rights, may also introduce delays in investigation and prosecution, potentially hampering effective enforcement in egregious cases. Comparative Pe....