Kerala High Court
Unknown vs By Advs.Sri.Aswin Gopakumar on 1 July, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
WEDNESDAY, THE 31ST DAY OF JANUARY 2018 / 11TH MAGHA, 1939
Crl.MC.No. 1508 of 2016
CC 436/2015 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT(E&O),ERNAKULAM.
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PETITIONER/ACCUSED NO.2
DR.V.P.KURIYIPE
S/O.VALLOOJANDATHIL PETER, VALLOOKANDATHIL HOUSE,
CIVIL LINE ROAD, PALARIVATTOM, ERNAKULAM.
BY ADVS.SRI.ASWIN GOPAKUMAR
SRI.ANWIN GOPAKUMAR
SMT.KALA G.NAMBIAR
SMT.DEEPTI SUSAN GEORGE
SRI.ARJUN RADHAKRISHNAN NAIR
SMT.LALIA ELIZABETH PHILIP.
RESPONDENTS/STATE & COMPLAINANT
1 STATE OF KERALA,
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031.
2 THE ASSISTANT COMMISSIONER OF INCOME TAX(TDS)
OFFICE OF JOINT COMMISIONER OF INCOME TAX (TDS),
C.R.BUILDING, I.S.PRESS ROAD, KOCHI 682 018.
R1 BY PUBLIC PROSECUTOR C.S. HRITHWIK
R2 BY SRI. CHRISTOFER ABRAHAM, SC.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31-01-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Hr.....
Crl.MC.No. 1508 of 2016
APPENDIX
PETITIONER(S)' EXHIBITS
ANNEXURE A1- A TRUE COPY OF THE RULES AND BYE LAWS AS ENUMERATED IN THE
MEMORANDUM OF ASSOCIATION OF THE INDIAN MEDICAL ASSOCIATION,
COCHIN BRANCH.
ANNEXURE A2- A TRUE COPY OF THE CHALLAN DATED 1.7.2010 SHOWING PAYMENT OF
RS.2,76,230/-.
ANNEXURE A3- A TRUE COPY OF CHALLAN DATED 1.7.2010 SHOWING PAYMENT OF
RS.3,23,420/-.
ANNEUXRE A4- A TRUE COPY OF THE LETTER DATED 6.3.2012 SHOWING PAYMENT OF
TAX DUE BY THE ASSOCIATION.
ANNEUXRE A5- A TRUE COPY OF LETTER DATED 22.3.2014 REPLYING TO NOTICE ISSUED BY
THE DEPARTMENT.
ANNEUXRE A6- A TRUE COPY OF LETTER DATED 20.8.2014 REPLYING TO NOTICE ISSUED BY
THE DEPARTMENT.
ANNEUXRE A7- TRUE COPY OF COMPLAINT IN C.C.436/15 FILED BY THE 2ND RESPONDENT
BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, (ECONOMICS
OFFENSES), ERNAKULAM.
RESPONDENT(S)' EXHIBITS
NIL
// TRUE COPY//
P.S TO JUDGE.
Hr....
B.KEMAL PASHA, J.
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Crl.M.C.No.1508 of 2016
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Dated this the 31st day of January 2018
ORDER
The petitioner is the 2nd accused in CC No.436/2015 of the Additional Chief Judicial Magistrate's Court (Economic Offences), Ernakulam based on Annexure A7 private complaint filed by the Assistant Commissioner of Income Tax (TDS) as complainant against the Indian Medical Association Cochin Branch as the first accused, alleging offences punishable under section 276B of the Income Tax Act, 1961.
2. According to the complainant, the 2nd accused is the Principal Officer of the 1st accused Association in view of Section 2(35) of the Income Tax Act, 1961. The allegation is that the Principal Officer of the Association has failed to pay the income tax deducted at source in time. It is alleged that tax was belatedly paid by taking almost 12 months and still there is arrears.
3. According to the petitioner, he is not the Principal Officer of the 1st accused Association within the meaning of Crl.M.C.No.1508 of 2016 2 Section 2(35) of the Income Tax Act.
4. On hearing either sides, it has come out that no notice as contemplated under Section 2(35)(b) of the Income Tax Act, 1961 was served on the petitioner for treating him as the Principal Officer of the 1st accused Association. Only when a notice has been served within the meaning of Section 2(35)(b), the Income Tax authorities could treat the petitioner as Principal Officer of the 1st accused Association.
5. Matters being so, the prosecution proceedings against the petitioner herein in CC No.436/2015 before the Additional Chief Judicial Magistrate Court, (Economic Offences), Ernakulam based on Annexure A7 and also Annexure A7 are liable to be quashed.
In the result, this Crl.M.C. is allowed and all further proceedings CC No.436/2015 before the Additional Chief Judicial Magistrate's Court, (Economic Offences), Ernakulam, against the petitioner alone, are hereby quashed.
Sd/ B.KEMAL PASHA JUDGE jm/