2004 (8) TMI 58 - HC - Income Tax

Petitioners have challenged the legality and validity of the order passed by the Special Judge (Economic Offences) by which he rejected the petition filed by the petitioners for dispensing with their personal appearance and for being allowed to appear through their advocates under the provisions of section 205 of the Cr. P. C. Failure to deduct tax - Taking into consideration the fact that the petitioners are holding very responsible posts and it would be inconvenient for them to appear in person in court on every date the court below should have allowed the application of the petitioners under section 205 Cr. P. C. - held that the petitioners are entitled to exemption from appearance and they should be allowed to be represented through their lawyer unless the court thinks their personal appearance necessary at the time of trial.

Summary

Issues:
Challenging legality and validity of order rejecting dispensing personal appearance through advocates under section 205 of Cr. P. C.
Allegations of tax deduction default under Income-tax Act and liability under sections 276B and 278B.
Interpretation of section 205 of Cr. P. C. for dispensing personal attendance of accused.
Consideration of seriousness of offence, moral turpitude, and discretion in granting exemption under section 205.
Comparison with relevant case laws for granting exemption from personal appearance.

Analysis:
The judgment involves revision applications challenging the rejection of the petitioners' request to dispense with their personal appearance in court and allow representation through advocates under section 205 of the Cr. P. C. The petitioners, holding high-ranking positions in a corporation, were accused of tax deduction defaults under the Income-tax Act, specifically sections 276B and 278B. The Special Judge rejected their application citing the serious nature of the offence and denied them the benefits of section 205.

The interpretation of section 205 of the Cr. P. C. was crucial in this case. The provision allows a Magistrate to dispense with the personal appearance of the accused and permit representation by a pleader. The judgment highlighted that this power can be exercised when a summon is issued initially, not after a warrant has been issued or the accused has been arrested without a warrant. The court emphasized that the discretion to grant exemption under section 205 should be exercised judiciously, especially in cases involving serious offences and moral turpitude.

The judgment referred to relevant case laws to support the interpretation of section 205. It cited the importance of considering the nature of allegations, accused's conduct, and potential inconvenience in deciding on dispensing with personal appearance. The court noted that the term "moral turpitude" signifies conduct contrary to justice, honesty, or good morals, and discretion under section 205 should favor individuals busy with public duties or work commitments.

In this case, the court found that the allegations against the petitioners constituted a technical offence rather than a case of misappropriation. Considering their responsible positions and the inconvenience of personal appearances, the court held that the petitioners were entitled to exemption under section 205. The judgment allowed the applications, setting aside the previous orders, and granted the petitioners the right to be represented through their lawyer unless their personal appearance was deemed necessary during the trial.