Jharkhand High Court
M/S Maithon Power Limited vs The State Of Jharkhand on 14 February, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
-1- Cr.M.P. No. 2193 of 2018
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2193 of 2018
1. M/s Maithon Power Limited, having its office at Village-Dambhull,
P.O.-Barbendia, P.S.-Nirsa, District-Dhanbad, through its authorized
Signatory Mr. Satish Kumar.
2. Pradip Roy, aged about 44 years, son of Chandi Charan Roy, resident
of Corporate Centre, 34, Sant Tukaram Road, Carnac Bunder, P.O.-
Carnac, P.S.-Payudhuni, District-Mumbai, Pin-400009.
..... ... Petitioner
Versus
1. The State of Jharkhand.
2. The Assistant Commissioner of Income Tax, TDS Circle, Dhanbad,
Aayakar Bhawan, Luby Circular Road, P.O. & P.S.-Dhanbad, District-
Dhanbad.
.. ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Pandey Neeraj Rai, Advocate
: Mr. Rohit Ranjan Sinha, Advocate.
: Mr. Akchansh Kishore, Advocate.
: Mr. Pradymna Poddar, Advocate.
For the State : Mr. Bhola Nath Ojha, A.P.P.
For the O.P. No. 2 : Ms. Amrita Sinha, Advocate.
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08/ 14.02.2022 Heard Mr. Pandey Neeraj Rai, learned counsel appearing for
the petitioners, Mr. Bhola Nath Ojha, learned A.P.P. for the State and Ms Amrita Sinha, learned counsel appearing for the O.P. No. 2 (Income Tax Department).
2. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.
3. This criminal miscellaneous petition has been filed for quashing of the entire criminal proceeding including the order dated 08.12.2017, passed by the learned Special Judge, Economic Offences, Dhanbad, in connection with C.O. Case No. 13 of 2017, whereby cognizance has been taken against the petitioners for the offences under Sections 276(B) and 278(B) of the Income Tax Act, pending in the Court of learned Special Judge, Economic Offences, Dhanbad.
4. The complaint was lodged by one Sandeep Ganguly, Assistant Commissioner, Income Tax Department, stating therein:-
(i) The complainant is a public servant within the meaning of section 21 of the I.P. Code and the present complaint is being filed by him acting or purporting to act in discharge of his -2- Cr.M.P. No. 2193 of 2018 official duty on the strength of sanction order and direction as well as authorization given by the Commissioner of Income Tax (TDS), Income Tax Patna, Sri R. B. Mishra.
(ii) The accused no. - 1 is a joint venture company and is juristic person represented through its principal officer i.e., accused no. -
2 and was carrying business of power generator in the name and style of accused no. 1 M/s Maithon Power Limited, having PAN AACCM8705H, having its office at Village Dambhuli, P.O. Barbendia, P.S. - Nirsa, Dist. Dhanbad (Jharkhand) - 828205 within the jurisdiction of your kind honour.
(iii) The accused no. - 1 is a private limited company having TAN -RCHM02200C registered under The Companies Act and derived Income from business of generating power and is an assessee within the meaning of Income Tax Act under T.D.S. Ward Circle, I.T. Department, Dhanbad.
(iv) The accused no. - 2 is the principal officer of accused no. -1 having PAN - AFETR8883F and was / is quite aware of the day to day, conduct of the business and entire business affairs of accused no. - 1 and actively participating in the function and management of companies affairs of accused no. - 1 and being a principal officer as per Section 2(35) of the I. T. Act of accused no. - 1 he was liable and responsible to the company for the conduct of the business of the company i.e., accused no. -1 for each and every act done by him or by any other person of the company for and on behalf of accused no.-1.
(v) The accused No. 2 for and on behalf of accused no. 1 being a principal officer of accused no. 1 deducted TDS amount, amounting to Rs. 8,22,23,551/- for F.Y.-2012-13 but failed to credit the same to the account of Central Government of India, TDS Ward Dhanbad. To avoid repeation of the contents of the detail a list of the details of PAN, payment date, due date, date of deposit, late payment, interest, date of deduction, period is attached herewith marked as Annexure-A which may be treated as part and parcel of the complaint petition.
(vi) The accused no. 2 being principal officer of accused no. - 1 and quite aware of day to day business and conduct of the business of the assessee i.e. accused no.-1 and being responsible officer of accused no. 1 deliberately, intentionally, knowingly, willingly and having mens rea in his mind failed, neglected and -3- Cr.M.P. No. 2193 of 2018 avoided to deposit the same in time to the credit of Central Government account i.e., I.T. Department, TDS Ward, Dhanbad without reasonable cause rather converted the aforesaid amount into their own use for their wrongful gain and for wrongful loss to the Central Government i.e., TDS Ward, Dhanbad.
(vii) As per provision laid down under Income Tax Act that any person deducting any sum in accordance with the provision of Chapter - XVII-B of Income Tax Act shall pay the sum so deducted to the credit of Central Government account within prescribed period but the accused persons failed to deposit the aforesaid deducted T.D.S. amount to the credit of TDS Ward Dhanbad on due time without reasonable cause by accused no.- 2 for and on behalf of assessee accused no, - 1 and thereby the accused no.-2 for and on behalf of accused No. 1 committed offence punishable U/s 276B of the I. T. Act. Since the accused no.- 2 committed offence for accused No. 1, it can be safely said that both the accused persons have further committed offence U/s 278B of the I. T. Act also.
(viii) That taking into account the aforesaid facts and circumstances a show cause notice was issued vide Letter no. FCIT (TDS) /PATNA /PROSECUTION/2017-18/2905 to 2906 dated 09/11/2017 and served upon the accused as to why a prosecution should not be launched under the appropriate section i.e., Section 276B r/w Section 278B of the I. T. Act against them and in response to the show cause Sri Pradip Roy, Principal officer of M/s Maithon Power Limited filed letter dated 17/11/2017 which had no leg to stand.
(ix) After considering the aforesaid facts and circumstances as discussed above a proposal for launching a prosecution for commission of offences U/s 276-B r/w Section 278-B of the I. T. Act against the accused persons was sent to the Hon'ble Commissioner of Income Tax, TDS Ward, Patna for granting sanction to launch a prosecution U/s 276-B r/w Section 278-B of the 1. T. Act against the accused persons.
(x) Taking into account the aforesaid facts and circumstances that the accused no. - 2, who was quite aware of the conduct of the business and day to day affairs of the business of accused no.
-1 and accused no. - 2 was liable and responsible for making payment of T.D.S. amount deducted at source for and on behalf -4- Cr.M.P. No. 2193 of 2018 of accused no. - 1 as per list attached herewith in due time in the light of the provision laid down U/s 194C of the I. T. Act but the accused persons intentionally, knowingly, deliberately and having mens rea in mind without reasonable cause, excuse and explanation failed to make payment of TDS amount as discussed above and admitted the delay in making payment of TDS amount for F.Y.-2012-2013 to the credit of TDS ward Dhanbad / Central Government of India and converted the same into their own use for their wrongful gain and wrongful loss to the I. T. Department TDS Ward, Dhanbad and as such the accused persons are liable to be prosecuted U/s 276-B r/w Section 278-B of I. T. Act since the offence U/s 276-B of the I. T. Act has been committed by the company (accused no. 1)
(xi) All the relevant documents were placed and produced before the Hon'ble Commissioner of Income Tax (TDS), Patna and Hon'ble Commissioner of Income Tax (TDS), Patna gone through the same with due care and caution and appreciated the fact available on the record which shows that accused persons failed to deposit the TDS amount in due time for relevant F.Y. which clearly contravenes provisions of the I. T. Act, 1961 making the accused persons liable for commission of offence punishable under section 276B r/w Section 278B of the I. T. Act for relevant F.Y. and after considering all the facts and circumstances with due care and caution he applied his judicial mind and opined that a prima facie case is made out under section 276B r/w Section 278B of the I. T. Act as amended up to date (since the offence U/s 276B of the I. T. Act has been committed by the company) for relevant F.Y. - 2012-2013 against the accused persons and as such accorded sanction to launch a prosecution against the accused persons under section 276B r/w Section 278-B of the I. T. Act and authorized / directed the complainant to file a case under section 276B r/w Section 278-B of the I. T. Act before the competent court of Dhanbad against the accused persons for relevant F.Y. 2012-2013. Original sanction order is attached herewith which may be treated as part and parcel of the complaint petition.
(xii) The complainant reserves right to produce and prove the relevant documents in accordance with law during the course of trial for the ends of justice and just decision of the case.
-5- Cr.M.P. No. 2193 of 2018(xiii) The offences under section 276B r/w Section 278-B of the I. T. Act are continuing offences and come within the purview of Economic Offence and as such the bar of limitation u/s 468 of Cr.P.C. is not applicable in this case.
(xiv) The complainant is a public servant and the present complaint is being filed by him in discharge of his official duty and as such the examination of the complainant and witnesses under Sections 200(1) Cr.P.C. is not necessary.
(xv) The complainant is a public service and has to go on tours frequently to discharge his Government official duties and as such in order to avoid unnecessary adjournment his day to day appearance may be exempted.
(xvi) The complainant is competent to file the present case at the instance / authorization given by Hon'ble Commissioner of Income Tax, TDS Ward, Patna and as such the present complaint is being filed by him against the accused persons."
4. Mr. Pandey Neeraj Rai, learned counsel appearing for the petitioners submits that the prosecution has been lodged under Section 276(B) and 278(B) of the Income Tax Act on the ground that the TDS has been deposited by the petitioners a bit late and on those facts the complaint has been filed. He submits that the TDS amount in question was received by the company in the month of February, 2013 and in terms of Rule-30 of the Income Tax Rules, 1962, it is required to be deposited in terms of Rule-30(2)(B), as such, the amount was required to be deposited on or before 07.03.3013, however, the same was credited in the account of Income Tax Department on 08.03.2013. He took the Court to the Bank statement, contained in Annexure-7 (Page No. 62) to the petition and by way of referring this document, which is the statement of the Bank submits that the amount in question was paid on 07.03.2013 between 10.00 P.M. to 11.00 P.M. He further submits that, however, the payment was credited in the account of the Income Tax Department on 08.03.2013, which is an admitted fact in view of the chart annexed with the complaint. He further submits that for the delay of one day in payment of TDS amount, the interest has also been paid to the department, which is also an admitted fact.
5. By way of referring Annexure-3 of the petition, he submits that a show cause was received, wherein all the Directors were questioned as to why they should not be treated as a Principal Officers and co-accused and proceeded under 276(B) and 278(B) of the Income Tax Act. He further -6- Cr.M.P. No. 2193 of 2018 refers to the letter of the Bank, contained in Annexure-7 and submits that the chart which has been shown as a part of this letter and by this letter the initiation of the TDS deducting time has been disclosed in the chart itself. By way of referring Section 95 of the Indian Penal Code, he submits that in view of that Section, if the harm is so slight, no person of ordinary sense and temper would complain of such harm. He submits that the TDS amount was already deposited and the interest has also been paid and in the light of Section 95 of the Indian Penal Code, the prosecution was not warranted. He further submits that in light of Section 202 Cr.P.C., the summon was not required to be issued so far as petitioner No. 2 is concerned, who was stationed at Mumbai.
6. To buttress his arguments, learned counsel appearing for the petitioners has relied in the case of Udai Shankar Awasthi Versus State of U.P. & Anr., reported in (2013) 2 SCC 435, wherein in para-40, the Hon'ble Supreme Court held as follows:-
"40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 Cr.P.C., though the appellants were outside his territorial jurisdiction. The provisions of Section 202 Cr.P.C. were amended vide Amendment Act 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases."
7. On the same line, he further relied in the case of Vijay Dhanuka & Ors. Versus Najima Mamtaj & Ors., reported in (2014) 14 SCC 638, wherein in para-13 thereof the Hon'ble Supreme Court held as follows:-
"13. In view of the decision of this Court in Udai Shankar Awasthi v. State of U.P., this point need not detain us any further as in the said case, this Court has clearly held that the provision aforesaid is mandatory. It is apt to reproduce the following passage from the said judgment:
"40. The Magistrate had issued summons -7- Cr.M.P. No. 2193 of 2018 without meeting the mandatory requirement of Section 202 CrPC, though the appellants were outside his territorial jurisdiction. The provisions of Section 202 CrPC were amended vide the Amendment Act, 2005, making it *mandatory to postpone the issue of process* where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases."
(emphasis supplied)
8. Learned counsel further submits that for the person in-charge, Section 278(B) of the Income Tax Act prescribed the offences committed by the company and submits that the person who was in-charge and response to at the time of offence will be liable to be prosecuted. He submits that the petitioner No. 2 was not the in-charge and was not responsible to the company. He submits that so far as words 'in-charge' is concerned, in-charge means a person for all over in-charge. To buttress his arguments, he relied in the case of Girdhari Lal Gupta Versus D.H. Mehta & Anr., reported in (1971) 3 SCC 189, wherein the Hon'ble Apex Court in para-6 held as follows:-
"6. What then does the expression "a person in- charge and responsible for the conduct of the affairs of a company mean" ? It will be noticed that the word 'company' includes a firm or other association and the same test must apply to a director in-charge and a partner of a firm in- charge of a business. It seems to us that in the context a person 'in-charge' must mean that the person should be in over all control of the day to day business of the company or firm. This inference follows from the wording of Section 23C(2). It mentions director, who may be a party to the policy being followed by a company and yet not be in- charge of the business of the company. Further it mentions manager, who usually is in charge of the business but not in over-all-charge. Similarly the other officers may be in charge of only some part of business."-8- Cr.M.P. No. 2193 of 2018
9. He further submits that recently the of Girdhari Lal Gupta (Supra) case has again been considered in the case of Dayle De'souza Versus Government of India through Deputy Labour Commissioner & Anr., reported in (2021) SCC Online SC 1012. Paras-15 and 17 thereof are quoted hereibelow:-
"15. Unlike sub-section (2) to Section 22C, sub- section (1) conspicuously does not use the term 'director, manager, secretary or other officer of the company' to bring them within the ambit of the vicarious liability provision, albeit every person in- charge of and responsible to the company for the conduct of its business at the time of the commission of the offence in question is deemed to be additionally liable. The words 'in-charge of the company' and 'responsible to the company' are pivotal to sub-section (1). This requirement has to be satisfied for the deeming effect of subsection (1) to apply and for rendering the person liable to be proceeded against and, on such position being proved, punished. Interpreting an identical expression used in Sections 23-C(1) and 23-C(2) of the Foreign Exchange Regulation Act, 1947, this Court in Girdhari Lal Gupta v. D.H. Mehta, has held:
"6. What then does the expression "a person in- charge and responsible for the conduct of the affairs of a company" mean? It will be noticed that the word "company" includes a firm or other association, and the same test must apply to a director in-charge and a partner of a firm in-charge of a business. It seems to us that in the context a person "in-charge" must mean that the person should be in over-all control of the day to day business of the company or firm. This inference follows from the wording of Section 23-C(2). It mentions director, who may be a party to the policy being followed by a company and yet not be in- charge of the business of the company. Further it mentions manager, who usually is in charge of the business but not in over-all charge. Similarly, the other officers may be in-charge of only some part of business.
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8. In R.K. Khandelwal v. State D.S. Mathur, J., in construing Section 27 of the Drugs Act, 1940, a provision similar to the one we are concerned with, observed:-9- Cr.M.P. No. 2193 of 2018
"There can be directors who merely lay down the policy and are not concerned with the day to day working of the company. Consequently, the mere fact that the accused person is a partner or director of the Company, shall not make him criminally liable for the offence committed by the Company unless the other ingredients are established which make him criminally liable.""
17. This exposition on the meaning of the term 'in- charge and responsible for' was referred to with approval in State of Karnataka v. Pratap Chand.
This decision relates to the prosecution of the partner of a firm under the Drugs and Cosmetics Act, 1940. The judgment referred to the explanation to Section 34 in the said Act (which is pari materia with the explanation in Section 22C of the Minimum Wages Act, 1948) to observe that for the purpose of imposing liability on the company under the said Section, a company includes a body corporate, a firm or an association of individuals. A director in relation to a firm means a partner in that firm. Therefore, even in the case of partners, when a firm commits an offence, the requirement of either sub-section (1) or sub-section (2) to Section 22C must be satisfied. This means that in terms of sub- section (1), the partner should be "in-charge of"
and "responsible to" the firm for the conduct of its business as per the dictum in Girdhari Lal Gupta (supra). Further, as per sub-section (2), a partner may also be liable, just as a director is liable for the conduct of the business of a company, if the offence is committed with the consent or connivance of, or is attributable to any neglect on the part of the partner concerned."
10. Relying on these two judgments, learned counsel appearing for the petitioners submits that the complainant has not disclosed in the complaint as to how the petitioner No. 2 was overall in-charge. On these grounds, he submits that the entire criminal proceedings including the order of taking cognizance are fit to be quashed.
11. Per contra, Ms. Amrita Sinha, learned counsel appearing for the O.P. No. 2 -Income Tax Department submits that whatever has been argued by the learned counsel appearing for the petitioners can be looked into only in the trial. By way of referring Annexure-3 of the petition, she submits that vicarious liability has been disclosed therein. She further submits that the petitioner No. 2 is the principal employer of the company. She further submits that the there is no delay of one day rather there is -10- Cr.M.P. No. 2193 of 2018 delay of two months in crediting the T.D.S. By way of referring to Annexure-5, she submits that the notice was to be given to the petitioner No. 2, who appeared before the Commissioner of Income Tax (TDS) to explain the things. By way of referring Annexure-6, she further submits that a reply was filed by the petitioner No. 2. She submits that the period of delay is counted from the date of deduction of the TDS and not from the date of deposit of the TDS, as per the CBDT guidelines. She further submits that the prosecution for not depositing the TDS and paying the interests are two different subjects. She further submits that paying the interest is civil liability, whereas the TDS amount, which has not been deposited by the petitioner is a criminal liability, for which, he has been called to face the prosecution under the relevant Sections of the Income Tax Act.
12. To buttress her arguments so far as the criminal prosecution and civil liability are concerned, she relied upon in the case of Income Tax Officer Versus Sultan Enterprises & Ors., reported in (2001) SCC Online Bom 1219. Paras-3 and 4 thereof are quoted hereunder:-
"3. The facts of the case are not much in dispute. The offence in question related to non-deposit of T.D.S. amount within the prescribed time and, therefore, action was taken against them and dues were recovered by imposing penalty and interest. This also amounts to offence punishable under Section 276B and 278B of the Income Tax Act, 1960. The learned C.J.M. erred in applying the principle of double jeopardy as provided under Section 300 of Criminal Procedure Code for the simple reason that the recovery of the amount due and payable by the respondent-Firm to the Income Tax Department has nothing to do with the criminal prosecution, because it is distinct provision inviting penal action for the default committed by the Firm.
4. They are liable both, for recovery of amount with interest and penalty so also for prosecution for having committed offence punishable under Section 276B of the Income Tax Act, for their failure to pay the amount within the prescribed period and as the respondent - Firm is a Partnership concern all the partners of the firm as contemplated under Section 278-B would be liable to be prosecuted."
13. She further submits that the point of delay in crediting of the TDS amount, the subject matter of that fact can only be ascertained in the trial only. To buttress her augments, she relied in the case of Shaw Vallace & Co. Ltd. Versus Commissioner of Income Tax (TDS) & Ors., reported -11- Cr.M.P. No. 2193 of 2018 in (2003) SCC Online Cal 787. Para-8 thereof is quoted hereunder:-
"8. After hearing learned counsel for the parties and after going through the materials on record, I am, however, not inclined to entertain this application at this stage. In a given case whether there is just and sufficient reason for not depositing the tax deducted at source is always a question of fact depending upon appreciation of the evidence produced before the court. The pleas taken by the petitioner in this writ application will all be available to them in the criminal trial and if they can establish that those are sufficient, the criminal prosecution will fail. But at this stage, there is no scope for pre-empting the said criminal proceeding by entertaining this writ application. The position, however, would have been different if the petitioner would convince this court that even if the allegations made by the respondents were all true those facts did not constitute any offence under Section 276B of the Income Tax Act. I, thus, find no reason to entertain this application at this stage in view of the fact that the questions involved are all disputed questions of facts to be gone into on consideration of the evidence."
14. She distinguishes the judgments relied by Mr. Rai, on the point of Section 202 Cr.P.C. and submits that Section 202 Cr.P.C. cannot be read in isolation and it required to be read along with Section 200 and 202 Cr.P.C. By way of referring those Sections of the Cr.P.C. she submits that it was within the discretion of the Magistrate to differ of calling the petitioner No. 2 under Section 202 Cr.P.C. She submits that in view of Section 276(D), the offence has taken place and the prosecution has rightly been launched.
15. In reply to the arguments of learned counsel appearing for the O.P. No. 2, Mr. Rai submits that whatever argued on the point of vicarious liability, the same have not been stated in the counter affidavit. He further refers to Section 95 of the Indian Penal Code. On the point of looking into the materials, he relied in the case of Ravi Thapar & Ors. Versus Madan Lal Kapoor, reported in (2013) 3 SCC 330, wherein the Hon'ble Supreme Court in para-29 held as follows:-
"29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available -12- Cr.M.P. No. 2193 of 2018 for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 Cr.P.C. the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution /complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice."
16. On these grounds, it has been argued on behalf of the petitioners that this petition is fit to be allowed, whereas it has been contended on behalf of the O.P. No. 2 that no interference is required under Section 482 Cr.P.C.
17. The Court has gone through the materials available on record. It is an admitted fact that the prosecution has been launched against the petitioners for delayed credit of TDS amount, under Sections 276(B) and 278(B) of the Income Tax Act. Section 276(B) of the Income Tax Act prescribed the punishment for not providing credit of the amount, for a term which shall not be less than three months and not more than 7 months and the fine. Sub-Rule-2 of Rule 30 of the Income Tax Rules, 1962 is quoted hereinbelow for ready reference:
-13- Cr.M.P. No. 2193 of 2018"30. .................
(2) All the sums deducted in accordance with the provisions of Chapter XVII-B by deductors other than an office of the Government shall be paid to the credit of the Central Government.
(a) on or before 30th day of April where the income or amount is credited or paid in the month of March; and
(b) in any other case, on or before seven days from the end of the month in which-
(i) the deduction is made; or
(ii) income tax is due under sub-section (1A) of section 192."
18. In view of Rule 30(2)(B) of the Income Tax Act, the amount in question is required to be credited by 07.3.3013, as the same was deducted in the month of February, 2013. It has been argued vehemently that the amount in question was credited on 08.03.2013. The Bank document, which is contained in Annexure-7 is a letter, issued by the General Manager, CSD, State Bank of India dated 24.01.2018, in which several charts were enclosed, disclosing the time of transaction. On perusal of the said chart, which are the Bank documents, and the same has not been denied, it transpires that the TDS credit transaction was initiated between 10.00 P.M. to 11. 00 P.M. and the first initiation was also done in the evening and for the transaction between 10.00 P.M. to 11. 00 P.M on 07.03.2013, the status description discloses 'completed successful.' Meaning thereby that the petitioners have taken steps within time, however, the same was credited in the account of the Central Government on 08.03.2013.
19. It is also an admitted fact that the interest for one day has also been paid. Seeing Rule-30(2)(B) of the Income Tax Rules and the Bank document, it transpires that the liability cannot be fastened upon the petitioners on the ground that the initiation of payment of TDS shall not be taken at the right time. The documents, available on record did not disclose how two months have been taken place in crediting the said amount, as has been argued by the learned counsel appearing for the O.P. No. 2. This stand of O.P. No. 2 is not accepted by this court. The judgment relied upon by learned counsel appearing for the O.P. No. 2 on the point of delay of the Kolkata High Court and the Bombay High Court on the point of civil liability and the criminal liability are on different footing. It is well settled that if the facts are disputed, the High Court is not required to look those facts, under Section 482 Cr.P.C. i.e. the subject matter of trial.
20. In the case in hand, it is an admitted fact that on the basis of the letter of the State Bank of India, the credit initiation was made well within time. It might have been reflected in the account of the Central -14- Cr.M.P. No. 2193 of 2018 Government on the next day, as the Bank hours at that time was over before 11.00 o'clock, however, now this transaction in view of the Government of India guidelines are taking place now a days in 24 hours. Thus, this Court is placing reliance in the case of Ravi Thapar & Ors. (Supra) and comes to a conclusion that the documents of the State Bank of India can be looked into by this Court, sitting under Section 482 Cr.P.C. The court is not in agreement with the learned counsel appearing for the O.P. No. 2, who submits that Sections 200 and 202 of the Cr.P.C. are required to be read simultaneously. It is an admitted fact that the petitioner No. 2 was stationed at Mumbai and seeing this, the learned Magistrate was required to follow the mandatory provision of Section 202 Cr.P.C., which has been amended in the year 2005 making it mandatory to postpone the issue of process, where the accused is not residing within the territorial jurisdiction of the magistrate concerned. It has not been disclosed in the complaint as to how the petitioner No. 2 was responsible for overall charge of the business. Section 278(B) of the Income Tax Act speaks of the offence committed by the company. For ready reference, 278(B) of the said Act is quoted hereinbelow:-
"278B. Offences by companies:-
(1) Where an offence under this Act has been committed by a company, every per- son who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to,, be proceeded against and punished accordingly:
Provided that nothing contained in this sub- section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-
section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.- For the purposes of this section,-
-15- Cr.M.P. No. 2193 of 2018(a) ' company" means a body corporate, and includes-
(i) a firm; and
(ii) an association of persons or a body of individuals whether incorporated or not; and
(b) " director', in relation to-
(i) a firm, means a partner in the firm;
(ii) any association of per- sons or a body of individuals, means any member controlling the affairs thereof.]"
21. On a reading of this Section it is crystal clear that a person, who at the time of offence was committed, was in-charge of, and was responsible to, the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. It has not been disclosed in the petition that as to how the petitioner no. 2 is overall in-charge of the business and the case of Girdhari Lal Gupta (Supra) and Dayle De'souza (Supra) are helping the petitioners.
22. Section 95 of the Indian Penal Code speaks as under:-
"95. Act causing slight harm.--Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm."
Therefore, there might be a case of slight harm in not crediting the TDS amount by 07.03.2013 and in fact considering that the interest has already been paid, it can be safely said that the harm has not taken place.
23. With the cumulative effects of the above discussion and the analysis made by this court hereinabove, the entire criminal proceeding including the order dated 08.12.2017, passed by the learned Special Economic Offices, Dhanbad, in connection with C.O. Case No. 13 of 2017, whereby cognizance has been taken against the petitioners for the offences under Sections 276(B) and 278(B) of the Income Tax Act, pending in the Court of learned Special Judge, Economic Offences, Dhanbad, are hereby, quashed.
24. This criminal miscellaneous petition is allowed and disposed of.
(Sanjay Kumar Dwivedi, J.) Amitesh/-