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TMI Blog2010 (11) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... JUDGMENT A.K. PATHAK, J. (Oral) 1. By the above petitions, petitioner seeks leave to appeal against the judgment dated 8th September, 2009 passed by Additional Chief Metropolitan Magistrate (ACMM), Delhi Crl.L.P.85/2010 Page 2 of 8 whereby respondent no. 3 i.e. director of the respondent no.1, has been acquitted of the offence under Section 276-B of the Income Tax Act, 1961 (for short hereinafter referred to as "the Act"). 2. These petitions are disposed of together as not only the parties but the facts and the questions of law involved therein are same. 3. Briefly stated, facts of the case are that the petitioner had filed complaints before the ACMM praying therein that the respondent be summoned, tried and punished under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to appeal to petitioner. 7. Section 194-A of the Act mandates the deduction of tax at source on the credit or payment of interest other than "interest on securities". Section 194-A (4) uses the expression "the person responsible for making the payment". Section 204 of the Act defines the expression "person responsible for paying". Relevant would it be to refer to Section 204 of the Act, which reads as under :- "Section 204: Meaning of "Person responsible for paying"- For the purposes of sections 192 to 194, section 194A, section 194B, section 194BB, section 194C, section 194D, section 194E, section 194EE, section 194F, section 194G, section 194H, section 194-I, section 194J and section 194K, 194L sections 195 to 203 and section 285, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sit it with the department. 9. Infringement of Section 194-A (4) is an offence punishable under Section 276-B of the Act. In case an offence is committed by a company, the prosecution for the offence under Section 276-B has to be launched against the company itself and its principal officer. 10. Section 2(35) of the Act defines the expression "principal officer". Relevant it would be to refer to Section 2 (35) herein which reads as under :- "(35) "principal officer", used with reference to a local authority or a company or any other public body or any association of persons or any body of individuals, means- (a) the secretary, treasurer, manager or agent of the authority, company or association, or body, or (b) any person connec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to prosecute the director along with company for an offence under Section 276-B of the Act then it was incumbent upon him to issue a notice under sub-clause (b) of 2(35) of the Act expressing his intention to treat the director as "principal officer" of the company and in absence thereof, director shall be entitled to the acquittal. 14. In Sushil Suri and Ors. Vs. State Ors. (2008) 303 ITR 86 (Delhi), a Single Judge of this Court has held that before a prosecution under Section 276-B of the Act can be launched against the director he should have been notified that department/AO has intention of treating him as "principal officer" of the company. In absence of such notice under Section 2(35)(b) of the Act, prosecution against th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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