Bombay High Court
Maxtone Electronics Pvt Ltd vs Income Tax Officers on 25 September, 2023
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
Gokhale 1 of 3 7-apl-1189-23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1189 OF 2023
Maxtone Electronics Pvt. Ltd. & Anr. ..Applicant.
Versus
Income Tax Officer (TDS) 1(3)-4 & Ors. ..Respondents
__________
Mr. Sham Walve a/w. Mr. Sameer G. Dalal for Applicants.
Mr. Akshit Kothari i/b. Mahesh Rajpopat for Respondent No.1.
Mr. Arfan Sait, APP for State/Respondent No.3.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 25 SEPTEMBER 2023
PC :
1. The Applicants have challenged the order dated
19.11.2019 passed by the Additional Chief Judicial Magistrate, 38 th
Court, Ballard Pier, Mumbai, in C.C.No.374/SW/2019, issuing
process against the applicants for commission of offence
punishable U/s.276B r/w. Section 278B of the Income Tax Act,
1961.
2. Heard Mr. Sham Walve, learned counsel for the
Applicants, Mr. Akshit Kothari, learned counsel for the
Respondent No.1 and Mr. Arfan Sait, learned APP for the
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State/Respondent No.3.
3. The complaint is filed by the Respondent No.1. It is
mentioned in the complaint that, during the financial year 2010-
2011 relevant to the Assessment year 2011-2012, the applicants
deducted amount of Rs.2,40,04,159/- by way of TDS, but it was
not credited to the Government. The allegations are that,
Rs.2,05,90,646/- were deposited up to 12 months and the other
amount was deposited after 12 months and, therefore, this
prosecution was launched.
4. Learned counsel for the Applicants submitted that the
complaint itself mentions that the amount of TDS along with
interest was already paid by the applicants much before launching
of the prosecution in the year 2019 and importantly much before
detection of non payment of TDS. He relied on the circular dated
27.12.2014 issued by the Ministry of Finance, Government of
India. He relied on Clause 4(i) which reads thus:-
"Section 278AA of the Act provides that for the
purposes of section 276B, no person shall be
punishable for any failure referred to in the said
provision if he proves that there was a reasonable
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cause for such failure. The fact that the deductor has
remitted the money with interest before detection
may be taken note of amongst other submission of
the defaulter while deciding to launch prosecution.
While processing the cases for prosecution u/s.
276B / 276BB a fair and judicious view should be
taken in view of the provisions of section 278AA
before filing of complaints."
5. Considering these submissions, it is necessary to hear the
other side. Mr. Akshit Kothari, learned counsel appears for the
Respondent No.1 and he seeks time to file Affidavit in reply.
Learned counsel for the applicants has made out a case for grant of
ad-interim relief.
6. Hence, the following order:
ORDER
i) Issue Notice to the Respondents, returnable on 19.12.2023.
ii) Stand over to 19.12.2023.
iii) Till then, there shall be ad-interim relief in terms of prayer clause (c).
(SARANG V. KOTWAL, J.) ::: Uploaded on - 26/09/2023 ::: Downloaded on - 27/09/2023 02:57:30 :::