9911796707
TMI Blog1998 (11) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 194C of the Income-tax Act. Accused No. 1 had failed to deduct the tax at source as required under the Act without reasonable cause or excuse for the assessment year 1985-86, the return of which was filed on June 10, 1985. To this effect a show-cause notice was issued to accused No. 1 asking as to why the prosecution should not be launched against them for non-deduction of tax at source. The said show-cause notice was served on the assessee-firm through its accountant. A reminder to this effect was sent on February 4, 1986, and the departmental notice server visited a number of times at the given address of accused No. 1 several times but no partner was available. Ultimately, the show-cause notice was served by affixation asking the assessee to file a written statement. Despite the fact that three opportunities were given to file the written statement, respondent No. 1 of the complaint of which respondents Nos. 2 to 7 are the partners and in charge of the conduct of the business, did not give any reply and as such the respondents of the complaint are jointly and severally liable for the punishment under section 276B of the Income-tax Act. The pre-charge evidence in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the payments made to the sub-contractors and since the same has not been deducted the offence under section 276B of the Income-tax Act is complete, He further urged that none of the judicial pronouncements relied upon by learned counsel for the accused is of any help to the accused because the case is at the charge stage and the accused cannot be discharged. Heard. The contentions of both the parties considered. Section 194C imposes a liability upon the contractor and sub-contractor. Section 194(2) of the Income-tax Act, 1961, stipulated that any person (being a contractor and not being an individual or a Hindu undivided family), responsible for paying any sum to any resident in pursuance of a contract with the subcontractor for carrying out, or for the supply of labour for carrying out, the whole or any part of the work undertaken by the contractor or for supplying whether wholly or partly any labour which the contractor has undertaken to supply shall, at the time of credit of such sum to the account of the sub-contractor or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to one per ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently, another reminder was sent on February 4, 1986, and the departmental notice server visited a number of times at the given address of accused No. 1 but no partner was available. It is further averred in the complaint that ultimately the show-cause notice was served upon the accused by affixation by Sh. Baldev Verma, Inspector, on February 14, 1986, asking the accused to file written reply by February 20, 1986. In the given circumstances, it can be conclusively said that accused No. 1 was given reasonable opportunity to show cause is to why the prosecution should not be initiated against accused No. 1 and the remaining accused. In view of the averments contained in the complaint itself, the contention of learned counsel for the accused is liable to be rejected at the very outset. In view of the averments contained in the complaint, itself, the judicial pronouncement titled Sequoia Construction Co. Pvt. Ltd. v. P. P. Suri, ITO [1986] 158 ITR 496 (Delhi), is not applicable to the facts and circumstances of the case and is distinguishable on facts. Nextly, the question of launching the prosecution for a petty amount has attracted the attention of the court as contended on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Sub-section (2) of section 397 further lays down that the powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. The scheme of Chapter XXX would also show that a second revision is totally barred. Thus only one chance of revision has been given to a litigant when an interim order is passed which is subject to revision. As per sub-section (3) of section 397 if a revision has been filed by any person either to the High Court or to the Sessions judge, no further revision of the same shall be entertained by either of them. Ours is a country which is governed by rule of law. The substantive penal offences are contained in the Code known as the Indian Penal Code. With regard to the procedure for the trial of the substantive offences the Code of Criminal Procedure is a competent enactment. On the criminal side we have four trials. Magistracy, Court of Sessions, High Court and the Supreme Court. The scheme of the Code of Crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner could not make out a case that a complicated question of law is supposed to be interpreted by the High Court in the matter. To proceed with this discussion, an illustration can equally be given of section 438 of the Criminal Procedure Code. An anticipatory bail is entertainable both in the Court of Sessions or in the High Court. But the High Court has always been deprecating the tendency of a litigant when he approaches it at the first instance. The High Court would always like to be enlightened by the views taken by the subordinate court in allowing or declining a particular plea. If a litigant is not satisfied by an order passed in revision by the Court of Sessions he can again attack the order under section 482 of the Criminal Procedure Code, by making out a case within the domain of that section. He is not prejudiced in the event of the dismissal of his revision in the Court of Sessions when the impugned order is passed by a Magistrate. When a bail application is declined under section 438 of the Criminal procedure Code, by the Court of Sessions, the aggrieved can always come to the High Court seeking anticipatory bail. With this background I have taken the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the financial year. The stand of Mr. Kapoor was that some amount of the petitioners was already lying with the Government and it was free to adjust the amount. The petitioners could explain their position before the authorities. They did, not do so in spite of the opportunity granted to the petitioners. In this view of the matter, I cannot say that the reasons which have been adopted by the learned Chief judicial Magistrate while framing charges against the petitioners are patently illegal or erroneous. Learned counsel for the petitioner then stated that by virtue of Common Cause's case, AIR 1996 SC 1619, continuance of the complaint against the petitioner is unwarranted. Learned counsel submitted that the proposed punishment which the Chief judicial Magistrate could grant was hardly three months. The complaint was instituted in the year 1986. Pre-charge evidence was concluded in the year 1987 and in these circumstances the learned Chief Judicial Magistrate ought to have dismissed the complaint. The argument of Mr. Kapoor may look attractive at the first instance but on my deeper scanning it is devoid of any merit. The Supreme Court firstly laid down certain exceptions. The offen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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