Judgment :- M. S. JANARTHANAM J. This is an application filed under section 482 of the Code of Criminal Procedure, to quash the proceedings in C. C. No. 637 of 1985 on the file of the Additional Chief Metropolitan Magistrate (Economic Offences), Egmore, Madras Brief facts are :-The Income-tax Officer, City Circle-I(2), Madras, launched a prosecution against the petitioner (fourth accused) and three others (accused Nos. 1 to 3) for offences under section 120B read with section 420, Indian Penal Code, 1860, and sections 276C, 277 and 278 of the Income-tax Act, 1961 The arguments, as advanced above, by both counsel, fall for consideration for reaching a proper conclusion in the light of the provisions of the Income-tax Act. Explanation 2 to section 273A of the Act is couched in the following terms ; "Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing belonging to a person are seized under section 132 and within fifteen days of such seizure, the person makes a full and true disclosure of his income to the Commissioner, such person shall, for the purposes of clause (b) of this sub-section (namely, sub-section (iii), be deemed to have made, prior to the detection by the Income-tax Officer of the concealment of particulars of income or of the inaccuracy of particulars furnished in respect of such income, voluntarily and in good faith, a disclosure of such particulars." * This Explanation 2, which was inserted by the Taxation Laws (Amendment) Act, 1984, with effect from October 1, 1984, has been deleted by the Finance Act, 1985. There is no manner of doubt whatever that this Explanation 2 was in force at the time when the search and seizure was effected by the Income-tax Department from the premises of the petitioner leading to the launching of prosecution against her. It is clear from Explanation 2 as stated above, that the Taxation Laws (Amendment) Act, 1984, amended the provisions of section 273A of the Act, to provide that where books of account, cash, jewellery, etc., are seized during search carried out under section 132 of the Act, the assessee shall be deemed to have made a full and true disclosure, prior to the detection by the Income-tax Officer, if such disclosure is made within fifteen days of such search. So far as the case on hand is concerned, the search of the premises of the petitioner revealed the receipt of on-money to the extent of Rs. 1, 65, 975 by the petitioner without the same being either brought into account or shown in the income-tax return. The petitioner, on the date when the seizure was effected, viz., January 22, 1985, had categorically confessed to the officer who effected the search that she in fact received the on-money in respect of the sale transaction of the plot sold to the first accused company represented by its directors, accused Nos. 2 and 3. She also intimated this fact within fifteen days from the date of seizure to the Commissioner of Income-tax as to her having received the on-money to the extent of Rs. 1, 65, 975. The resultant factual position is that, within fifteen days of the date of seizure, she had made a free and frank disclosure of the receipt of the on-money to the authorities concerned, as provided under Explanation 2 to section 273A of the ActThe question that now, falls for consideration is as to whether she will be immune from prosecution. To decide this moot question, useful reference may be made to the provisions of section 273A(1), sub-clauses (ii) and (iii)(b). Section 273A deals with the power of the Commissioner to reduce or waive penalty, etc., in certain cases. So much of the portion of the section as is relevant for our purpose is as follows. To decide this moot question, useful reference may be made to the provisions of section 273A(1), sub-clauses (ii) and (iii)(b). Section 273A deals with the power of the Commissioner to reduce or waive penalty, etc., in certain cases. So much of the portion of the section as is relevant for our purpose is as follows. "Section 273A (1) Notwithstanding anything contained in this Act, the Commissioner may, in his discretion, whether on his own motion or otherwise (ii) reduce or waive the amount of penalty imposed or imposable on a person under clause (iii) of sub-section (1) of section 271 ; or (iii) reduce or waive the amount of interest paid or payable under sub-section (8) of section 139 or section 215 or section 217 or the penalty imposed or imposable under section 273 if he is satisfied that such person - (b) in the case referred to in clause (ii), has, prior to the detection by the Income-tax Officer, of the concealment of particulars of income or of the inaccuracy of particulars furnished in respect of such income, voluntarily and in good faith, made full and true disclosure of such particulars." * From a cursory perusal of the said provision, it is crystal clear that the section starts with a non obstante clause, namely, "notwithstanding anything contained in this Act . . ." The Commissioner has the power of discretion under the section to reduce or waive penalty in certain cases. He has power to reduce or waive penalty if the assessee makes a full and true disclosure of his income voluntarily and in good faith prior to the detection by the Assessing Officer. The sort of immunity was also provided by the provision of Explanation 2 to section 273A then in existence. Normally, if a detection is made by the Assessing Officer of the escape of income particulars or concealment of income by the assessee, then the power of discretion vested in the Commissioner to reduce or waive the penalty in respect of such escaped income is not there in the sense that there is absence of provision to exercise such discretion. Normally, if a detection is made by the Assessing Officer of the escape of income particulars or concealment of income by the assessee, then the power of discretion vested in the Commissioner to reduce or waive the penalty in respect of such escaped income is not there in the sense that there is absence of provision to exercise such discretion. The Legislature thought it fit to introduce Explanation 2 to section 273A in the year 1, 984 that, even in respect of escaped or concealed income detected by the Assessing Officer during the course of search, the power of the Commissioner to exercise his discretion in the matter of waiver or reduction of penalty was made available under the Explanation. In other words, but for the Explanation, the assessee has to face the music of the consequences flowing from the concealment of escaped income detected by the officers during the course of the search. The Explanation does not at all state that once the assessee makes a free and full disclosure voluntarily and in good faith within fifteen days of the detection of such income during the course of the search, he will be immune from prosecution in a criminal court. Section 279 of the Act provides for prosecution to be at the instance of the Chief Commissioner or Commissioner in respect of offences arrayed under that section. The petitioner is prosecuted for the offences under sections 276C and 277 of the Act, apart from other offences found mentioned in the complaint. A perusal of section 279 of the Act would make it abundantly clear that the two sections, namely, sections 276C and 277 of the Act, in respect of which the petitioner has been prosecuted, are included in section 279 of the Act. At this juncture, reference may be made to the provision of section 279(lA) of the Act. It reads as follows "A person shall not be proceeded against for an offence under section 276C or section 277 in relation to the assessment for an assessment year in respect of which the penalty imposed or imposable on him under clause (iii) of sub-section (1) of section 271 has been reduced or waived by an order under section 273A." * It is also better to refer to the provision of clause (iii) of sub-section (1) (c) of section 271 of the Act, which is as follows. "Section 271. "Section 271. (1) If the Assessing Officer or the Deputy Commissioner (Appeals) or the Commissioner (Appeals) in the course of any proceedings under this Act, is satisfied that any person, - (c) has concealed the particulars of his income or furnished inaccurate particulars of such income he may direct that such person shall pay by way of penalty (iii) in the cases referred to in clause (c), in addition to any tax payable by him, a sum which shall not be less than, but which shall not exceed twice, the amount of tax sought to be evaded by reason of the concealment of particulars of his income or the furnishing of inaccurate particulars of such income . . ." * From a perusal of the abovesaid provisions, it is clear that once the Commissioner exercises his discretionary power of waiver or reduction of the penalty imposed or imposable on the assessee under clause (iii) of sub-section (1)(c) of section 271, then it goes without saying that the assessee shall not be proceeded against for an offence under section 276C or section 277 of the Act. The immunity, if at all, is granted only by the provisions of sub-section (1A) of section 279. This provision grants immunity as stated earlier only in respect of two offences under sections 276C and 277 of the Act. So far as the petitioner is concerned, as adverted to earlier, she had been prosecuted not only for the offences under sections 276C and 277 of the Act, but also for other offences under section 278 of the Act as well as under section 120B read with section 420 of the Indian Penal Code. As a matter of fact, the Commissioner, in this case, had not at all passed any order under section 273A regarding reduction or waiver of penalty in respect of the concealed income of on-money to the extent of Rs. 1, 65, 975. As a matter of fact, the Commissioner, in this case, had not at all passed any order under section 273A regarding reduction or waiver of penalty in respect of the concealed income of on-money to the extent of Rs. 1, 65, 975. Once the order is not passed by the Commissioner, the question of immunity from prosecution, as provided under section 279(lA) in respect of offences under sections 276C and 277, may not at all be available to the petitionerLearned counsel for the petitioner would contend that though the Commissioner had so far not passed any order either reducing or waiving penalty, in respect of the transaction of sale of the plot by the petitioner, yet, in the circumstances of the case, it should be deemed that the Commissioner ought to have passed an order under section 273A of the Act. He would amplify the argument by stating that there is nothing further to be done by the assessing authorities in the matter of coming to a conclusion as regards the sale transaction of the plot of land by the petitioner in determining as to whether a free and full disclosure of the income derived by the petitioner in the transaction had been made. A perusal of the complaint would make it clear that the prosecution of the petitioner and the others is only in respect of the non-disclosure of the income resulting in the transaction of sale of the particular piece of land by the petitioner to the third parties. It is also the case of the Department that the on-money received by the petitioner in this case is only to the extent of Rs. 1, 65, 975. If that be the case, there remains nothing for determination of the question of escaped income from the sale transaction. As such, the assessee had made a confession as to the receipt of the on-money to the extent of Rs. 1, 65, 975 within fifteen days from the date of the search and seizure of the document by the assessing authorities. In such circumstances, the Commissioner ought to have passed an order under section 273A of the Act. If the case of the Department is that there are other transactions in respect of which concealment of income is there, then, it may not be possible for the Commissioner to have passed an order under section 273A of the Act. In such circumstances, the Commissioner ought to have passed an order under section 273A of the Act. If the case of the Department is that there are other transactions in respect of which concealment of income is there, then, it may not be possible for the Commissioner to have passed an order under section 273A of the Act. Again, even at the risk of repetition, I have to state that the complaint proceeds only on the footing of escaped income in respect of the sale transaction of sale of plot of land belonging to the petitioner to third parties. As such, it can be safely taken for granted that an order under section 273A ought to have been passed by the Commissioner with the result that the petitioner, as per the provisions of section 279(lA) of the Act, will be immune from prosecution in respect of the offences under sections 276C and 277 of the Act. Barring this, the petitioner will not be entitled to any immunity from prosecution in respect of the other offences as specifically mentioned in the complaint viz., offences under section 278 of the Incometax Act and section 120B read with section 420 of the Indian Penal Code. In view of what has been stated above, the proceedings in the court below will stand quashed in respect of the offences under sections 276C and 277 of the Income-tax Act, in so far as the petitioner (fourth accused) is concernedIn the result, the application is allowed in part, as indicated above.