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TMI Blog1970 (6) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... of one Malabar Agricultural Co. Ltd., Kottayam, for his failure to pay to the Central Government income-tax which he deducted from the dividend when it was distributed among its shareholders each year, beginning from April 20, 1961, and ending with February 1, 1968., The year of assessment, the date of declaration of dividend, the date on which the tax was deducted from the dividend, the amount so deducted and the actual payment of the tax to the credit of the Government are given in a tabular form below : ----------------------------------------------------------------- Year of Declared Tax deducted Amount so Actually paid assessment on on dividend from dividend deducted to the credit of Government ----------------------------------------------------------------- Rs. ----------------------------------------------------------------- 1960-61 21-03-1961 20-4-1961 22,213.11 18-1-1969 1961-62 30-12-1961 07-6-1962 26,919.20 20-2-1969 1962-63 31-12-1962 05-2-1963 30,589.45 03-3-1969 1963-64 31-12-1963 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... educting the amount of tax out of the dividend under the above section, the principal officer of the company shall pay that, within the prescribed time, to the Central Government as required by section 18(6), which read as follows : " All sums deducted in accordance with the provisions of this section shall be paid within the prescribed time by the person making the deduction to the credit of the Central Government or as the Central Board of Revenue directs. " The failure to pay the tax to the Government under the Income-tax Act, 1922, was made punishable under section 51 of the Act. Section 51 : " If a person fails without reasonable cause or excuse- (a) to deduct and pay any tax as required by section 18.... he shall, on conviction before a Magistrate, be punishable with fine which may extend to ten rupees for every day during which the default continues. The provisions similar to the above sections 18(3D), 18(6) and 51 are, respectively, provided in sections 194, 200 and 276(d) and 276B, respectively, in the 1961 Act. Section 194 of the Act reads : " Dividends.-The principal officer of an Indian company or a Company which has made the prescribed arrangements for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Chapter XVIIB is an offence only under section 276B after April 1, 1968, and that section 276(d) is defunct thereafter, The petitioner's case is that by the addition of section 276B with effect from April 1, 1968,to the Act, non-payment or non-deduction of tax on dividends payable to shareholders, made an offence under section 276(d) of the Income-tax Act of 1961, stood deleted and, therefore, a prosecution after 1st April, 1968, under section 276(d) of the Income-tax Act of 1961 will not lie. According to the petitioner, the General Clauses Act will not, bring into operation for the continuity of the provision of that section. So it is alleged that there is no saving provision in the Income-tax Act, 1961, subsequent to the repeal made in section 276(d). of the Act and, therefore, it is contended that the complaints filed under section 276(d) are unsustainable and, hence, the District.Magistrate was not competent to take congnizance of the complaints for offences alleged to have been committed under section 276(d) of the Income-fax Act for nonpayment of tax deducted at source. It is then contended that after the amendment en April 1, 1968, the prosecution under section 276B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts referred to above. Under those circumstances, this court will not be justified at this stage to interfere with the committal order. In a case, Thakurdas Kimatrai v. State, it was held that it would not be expedient in the interests of justice to allow the accused to raise an academic point of law under section 215 of the Criminal Procedure Code and to press the High Court to decide a hypothetical academic point. In that case the accused were committed to and their trial in the court of sessions for the offences under sections 376 and 406, Indian Penal Code, and under section 6, Bigamous Marriages Act, and they applied under section 215 of the Criminal Procedure Code to quash the commitment in respect of the offence under section 376, Indian Penal Code. But the question of the competence of the charge and the effectiveness under section 376 depended on first establishing the charge under the Bigamous Marriages Act which was not established. Under those circumstances, the High Court of Bombay did not think that it would be expedient in the interests of justice that it should allow an academic point at that stage. In all these cases one question that requires to be considered is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lth of the miners and the second for the proper care of the children of female miners ...... without these the miners could not be expected to preserve their health, and children of the female miners could not be properly looked after. The mere fact, therefore, that the specified date within which the baths and the creches were required under the Rules to be constructed expired, cannot possibly mean that the duty of the owner ended with the expiry of the date. That duty still remains. It continues till the pithead baths and creches are constructed as required by the Rules. A continuing wrong or a continuing offence is, after all, a continuing breach of a duty which itself is continuing. If a duty continues from day-to-day, the non-performance of that duty from day-to-day is a continuing wrong. " Similar view was expressed in Akharbhai Nazarali v. Hussain Bhai . In that case some employers of a textile industry were prosecuted under section 406, Indian Penal Code, for criminal breach of trust read with paragraphs 76(a) and 76(c) of the Employees' Provident Funds Scheme, 1952, which was notified in October, 1953, giving effect to it from 2nd September, 1952. The case against the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the very purpose of the scheme. " It is an obligation and duty covered by statute and, therefore, it continued day after day, till of course the payment was made and the returns were submitted. If the above view point was to be accepted it would be obvious that the failure to pay up the tax on dividend in the instant case would be a continuing wrong which may become a penal offence even after April 1, 1968. But I am afraid whether I should decide the question whether the offence was a continuing offence coming within the purview of section 276B or not in view of the earlier circumstances which I pointed out. It is sufficient for me to say that a prima facie case having been made out the court below was correct in committing the petitioner for trial to the court of sessions. I may also consider whether by reason of the repeal of the 1922 Act by the 1961 Act or by reason of the deletion of " Chapter XVIIB or " out of section 276(d) of the Act the prosecutions under section 51 of the 1922 Act or under section 276D of the Act after the amendment on April 1, 1968, are not saved and, therefore, the prosecutions under those sections are not maintainable. Baliah v. Rangachari, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh v. State of Vindhya Pradesh and Kedar Nath Bajoria v. State of West Bengal their Lordships of the Supreme Court have already considered the precise question. With regard to the applicability of article 20(1) of the Constitution in a similar case their Lordships have been pleased to observe in Shiv Bahadur Singh v. State of Vindhya Pradesh that : " In this context it is necessary to notice that what is prohibited under article 20 is only conviction or sentence under an ex post facto law and not the trial thereof. Such trial under a procedure different from what obtained at the time of the commission of the offence or by a court different from that which had competence at the time cannot ipso facto be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular court or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved. " A reading of article 20(1) would show that it sets two limitations on the legislative authority : (1) that no person shall be convicted of any offence if there was no law in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n it is contended that the prosecution did not prove that the petitioner was the principal officer as required by sub-section (35) of section 2 of the Act and that, therefore, the prosecution could not be launched against him. It is contended further that there was no evidence in support of the case that the petitioner was the principal officer at the relevant time. It could not be said that the petitioner was not the principal officer when the admitted tax was paid to the credit of the Central Government. Exhibit P-2 dated September 24, 1969, which is a statement furnished by the petitioner to the Income-tax Officer showing the various payments made by him and also the circumstances under which the payments could not be made earlier. Exhibit P-2 was signed by the petitioner as managing director of Malabar Agricultural Company Ltd. In all the revision petitions the petitioner is described as the managing director of the said company. There is the evidence of P. W.- 1, the Income-tax Officer, that the petitioner was the principal officer. I may also point out that in none of the grounds of the revision petitions filed in this court the petitioner alleged any ground that he was not t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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