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1995 (9) TMI 10

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..... ssioner of Income-tax, Special Range 15, Calcutta, filed a petition of complaint against (1) Chem Crown India Limited and (2) J. Tewari, the secretary of the company, in which it was alleged that the company filed its return of income on July 31, 1987, for the assessment year 1987-88 and while scrutinizing the details filed by the company along with the return it was observed from a perusal of annexure "XVI" of the tax audit report dated July 28, 1987, that a tax of Rs. 85,045 was deducted under section 194A of the Income-tax Act, 1961, from the interest paid to the loan creditor, viz., IND Mark Services (P.) Ltd., on March 31, 1987, but the tax so deducted appears not to have been deposited to the Central Government account within the stat .....

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..... s accused No. 2, the learned magistrate seeing that the accused was treated as "principal officer", and proper notice under section 2(35)(b) of the Income-tax Act being served upon him, held that the proceeding was maintainable against accused No. 2. Learned counsel for the petitioner relying upon a single Bench decision of this court by A. K. Chatterjee J., in Shyam Lal Dey Housing Industries (Pvt.) Ltd. v. Sidheswar Bhusan Puttenda [1992] 2 CHN 434, a Division Bench decision in Prakash Chand Jain v. State a West Bengal [1991] 2 CHN 48, State of Madras v. C. V. Parekh [1980] 2 CHN 326 ; [1989] Cr. L. R. Cal 171 ; AIR 1971 SC 447 and AIR 1984 SC 620 (sic), tried to argue that the accused No. 2 being made liable vicariously and the princip .....

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..... iable. I have considered the submissions of learned counsel for both sides and also the rulings referred to as well as the relevant provisions of the Income-tax Act. The alleged offence is punishable with compulsory imprisonment and fine. In this case, the assessee-company (accused No. 1) cannot be sent to prison in view of the peculiar penal provision and the learned magistrate discharged it saying that it will be an abuse of the process of the court if the proceedings against the company are continued, but that does not mean that the company cannot commit an offence. The company was not acquitted on the merits after evidence but it was discharged under section 245(2) of the Criminal Procedure Code, before evidence and there is an allega .....

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..... ies Act. The unreported Division Bench decision of this court to which I am a party, certainly superseded the single Bench decision by the Hon'ble Justice A. K. Chatterjee. As far as the Division Bench decision reported in Prakash Chand Jain v. State of West Bengal [1991] 2 CHN 48 is concerned, it relates to an infringement of the provision of the Prevention of Food Adulteration Act and has no application to the facts of the present case and thus it cannot be argued on behalf of the petitioner that the commission of offence by the company not being proved, the commission of offence by its employee, viz., the secretary also fails in view of the clear decision of the apex court in AIR 1984 SC 620. The definition of the word "person" in sect .....

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