9911796707
TMI Blog1970 (6) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. -------- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment. The first deduction being on April 20, 1961, which was before the Act came into force on April 1, 1962, it is better to quote the relevant provisions of the old Income-tax Act, 1922. Section 18(3D) of that Act read as follows : " The principal Officer of an Indian company or a company which has made the prescribed arrangements for the declaration and payment of dividends (including dividends on preference shares) within India shall, before making any payment in cash, or before issuing any cheque or warrant in respect of any dividend or before making any distribution or payment to a shareholder of any dividend within the meaning of sub clause (a) or sub-clause (b) or sub-clause (c) or sub-clause (d) or sub-clause (e) of clause (6A) of section 2, deduct on the amount of such dividend, income-tax and super-tax at the prescribed rates . . . . " After deducting 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or excuse -. ..... (d) to deduct and pay tax as required by the provisions of Chapter XVIIB or under sub-section (2) of section 226; .... he shall be punishable with fine which may extend to ten rupees for every day during which the default continues. " Out of the above section the words " by the provisions of Chapter XVIIB or " had been omitted by the Finance Act of 1968 with effect from April 1, 1968. Thus the word ' Chapter XVIIB or " having been deleted out of section 276(d) it reads as if the noncompliance of the provisions of sections 194 and 200 of the Act read with rule 30 of the Rules was no longer an offence under section 276(d), after April 1, 1968. But, on the same day, section 276B came to be incorporated in the Act under the Finance Act, 1968. Therefore, it is clear that the non-compliance of sections 194 and 200 occurring in 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se cases, and, therefore, the revision petitions are disposed of in one and the same order. It is admitted that except in the failure to pay tax after the deduction of tax on April 20, 1961, in all other cases the alleged offence would fall within the ambit of section 276(d) of the Act. But in the nature of the case it is necessary to come to a conclusion whether an offence could be made out under section 276(d) before an offence under section 276B was considered. It is also clear that a conviction under sections 194 and 200 read with section 276(d) depended upon a conviction under section 18(3D) and 18(6) read with section 51 of the Act of 1922, in respect of failure to pay the tax after the deduction was made on April 20, 1961. The conviction and sentence in all the cases are, therefore, interrelated under these provisions of the two Acts 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... piry of the term ; the prosecution urged, however, that the offence of omission to construct these amenities was a continuing one. In the Patna High Court, State v. Kunja Behari Chandra , there was a difference of opinion, the majority view being that it was a continuing offence and the prosecution was not barred by section 42 of the Mines Act, which provided a limitation for such prosecutions. The matter is elaborately discussed in the Calcutta judgment in G. D. Bhattar v. state : " The question whether an illegal omission is a continuing offence or not can hardly be answered in a summary manner without considering the nature of the duty imposed, the object which the legislature had in view in imposing the duty ...... The pithead baths and the mines creches are amenities required by the legislature, the first for the sanitation and health 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 Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rns are submitted, or whether they are complete on the 15th of the next month and do not continue after that. If these offences are continuing offences that are, as it were, being committed every moment till the payments are made and the returns submitted, they would be punishable after October, 1953 ...... it is clear that the pith and substance of paragraph 38 is that the contributions should be paid into the fund, and the return should be made to the Commissioner. While the fixing of a date does mean that the employer should pay into the fund and send to the Commissioner the returns by that date, it cannot mean that once the date is passed, the employer is relieved of his duty and there is nothing more to be done. On the contrary, the duty of the employer is, in any event, to pay and to send the returns ; otherwise, one will be ignoring 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pril 1, 1968. I have already stated that I did not express any opinion as to whether the offence under section 276(d) committed in this case was a continuing offence or not. The next point which has been urged on behalf of the petitioner is whether the provisions of section 276(d) are hit by article 20(1) of the Constitution. Article 20(1) reads as follows : " 20. Protection in respect of conviction for offences-(1) No person, shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. " I am of the view that I am relieved of the necessity of considering this question, because in two cases, Shiv Bahadur 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 : " I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file the prosecution against the petitioner and that his written authorisation had also been filed into court. What section 279 of the Act requires is that the prosecution shall not be proceeded against an offender under section 276(d) or section 276B except at the instance of " the Commissioner". The clause " at the instance of the Commissioner " occurring in section 53 of the Act of 1922 only meant " on his authority " and since it was sufficient compliance of the statutory requirement of the section the complaint filed under the Act had been held to be good in the case which is already quoted as T. S. Baliah v. Rangachari . The relevant portion of the judgment is at page 794. I find, therefore, on the authority of the above decision that the prosecution of the petitioner under section 279 of the Act is sustainable. Then 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 ti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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