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TMI Blog2022 (3) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... doubt, in terms of Ex.P2 notice the averment is made that it is seen from the records that the respondent No.2 had deducted tax and not remitted the same to the Central Government account within the time and hence in paragraph 3 of Ex.P2 also stated with regard to the punishment provided and also asked to show cause for non-payment of the amount. First of all, the very contention of the respondent No.2 before the Trial Court is that he is not the Managing Director of accused No.1 and he is only a Director of accused No.1 and hence, as per Section 2(35) of the Act, which requires a notice to him as Principal Officer of accused No.1. The mandatory requirement is not complied with and the very contention is also that the notice given in te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LAI, ADVOCATE ORDER Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 2. This revision petition is filed challenging the order dated 07.12.2019 passed by the Trial Court discharging the respondent No.2 herein in C.C.No.89/2019. 3. The factual matrix of the case is that the proceedings was initiated against the second respondent herein who was arraigned as accused No.2 before the Trial Court invoking Section 276B of the Income Tax Act (for short the Act ) wherein an application was filed for discharge of the respondent No.2 herein of the offence punishable under Section 276B of the Act contending that accused No.2 is not the Managing Director of accused No.1 but he i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re. 4. The complainant has filed statement of objections before the Trial Court contending that all the procedure and legal requirements have been followed and whether there existed justifiable reasons for not remitting the TDS or accused No.2 was not in-charge of the affairs of accused No.1 is a matter of trial and prayed to dismiss the application. 5. Based on the contention taken by the respondents herein and also the statement of objections of the petitioner herein, the point that arise for the consideration is whether accused No.2 proves that there are no evidence to frame the charge against him along with accused No.1 for the offence punishable under Section 276B of the Act. The Trial Court while answering to the said point, cam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the notice issued under Section 2(35) of the Act was valid and legally sustainable one and the same has not been considered by the Trial Court in a perspective manner and hence, it requires interference of this Court. 7. After hearing the matter, this Court directed the petitioner to place the document at Ex.P2 to see whether anything is stated with regard to the compliance of Section 2(35) of the Act and the learned counsel produced the document and submits that in terms of the letter dated 21.10.2018, for having not remitted the amount, notice was issued and show cause notice was also given. 8. Per contra, the learned counsel appearing for the respondents would submit that the Trial Court having considered the grounds urged by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion is also that the notice given in terms of Ex.P2 is not in compliance of Section 2(35) of the Act. The Trial Court also taken note of the judgments referred supra while coming to such a conclusion and in paragraph 17 the Trial Court categorically held that Ex.P2 notice cannot be considered as the notice under Section 2(35) of the Act. This Court also directed the petitioner counsel to place the said document to see whether the said notice is in compliance of Section 2(35) of the Act or not and on perusal of the said document dated 21.10.2018, I do not find any error committed by the Trial Court in coming to the conclusion that Ex.P2 is not in compliance with Section 2(35) of the Act and the very reasoning given by the Trial Court is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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