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"The accused No. 1 is a registered firm for the purpose of income-tax and accused Nos. 2 to 5 were the partners of the firm during the assessment year 1984-85 relevant to the accounting period 1983-84 and were in charge and were responsible to the firm and conduct of the firm as well as the firm. The accused were dealing in purchase and sale of Tata diesel chassis and its parts and also derived income from the workshop during the relevant record."

14. These allegations which have been imputed by the Department against the accused are sought to be proved before the court of competent jurisdiction by leading oral as well as documentary evidence. The documents have been filed on record as per list annexed to the complaint. To attract the provisions of Section 278B of the Act, all that the Department has to discharge is the primary burden at this stage of the proceedings to show and to allege that the person is in charge of and responsible for the conduct of the business of the company. While screening the contents of the complaint, the court has to find whether the allegations made in the complaint per se justify the prosecution of the accused persons. The language of Section 278B of the Act clearly indicates the intention of the legislation in holding a person guilty of an offence, if he was responsible to the company for the conduct of the business of the company. It is provided that if the Department has discharged its primary burden under Sub-section (1) of Section 278B of the said Act, the accused has the opportunity if he so desires to rebut this onus by establishing that the offence was without his knowledge or he had exercised all due diligence to prevent the commission. It is in these circumstances alone that the accused can take the advantage of the proviso to Sub-section (1) of Section 278B of the Act. The Explanation to this section provides for inclusion of a firm in the word "company" and a "partner" in the term "director" used in this section. Thus the language of the section which requires consideration is "was responsible to the company for conduct of the business of the company". In this case the court is primarily concerned with the business of the partnership concern. Under the provisions of the Indian Partnership Act, two or more persons can constitute a partnership-firm which will be governed by a contract between the parties under Section 11 of the Indian Partnership Act. This contract between the partners is primarily subject to the provisions of that Act, i.e., to say that other statutory provisions of the Indian Partnership Act shall take precedence and will prevail over the contract between the parties which they enter into for the purpose of running the business of the partnership concern and rights and duties of the respective partner. Section 25 of the Indian Partnership Act provides that every partner is liable, jointly with all the other partners and also severally, for all acts of the firm done while he was a partner. The liability of a partner is unlimited so far as he continues to be a partner of the partnership concern. In the background of the provisions which govern the principal accused in the present case, one has to read the concerned language of Section 278B of the Act that "A person had to be responsible for the conduct of the business of the company". There are specific allegations satisfying basic ingredients, of the offence alleged to have been committed. There is also a specific allegation that the petitioners were responsible for the day-to-day business of the partnership concern and were conducting the business of the concern.

15. It is also a settled rule of law that the complaint has to be read in its entirety as one complete document. The argument of learned counsel for the petitioners that there is only reproduction of the language of Section 278B of the Act, has no force because as already noticed, there are specific and definite allegations and they are alleged to be responsible for the conduct of the business of the company/firm. It cannot be said that there is no application of mind in the present case because the order of assessment from where these offences have been attracted, has been upheld by the appellate authority and even show-cause notices had been given. Thus, it is neither a case of no pleading nor of no application of mind. Learned counsel for the petitioners has strongly relied upon the judgment of the; Delhi High Court in Parmeet Singh Sawney v. Dinesh Verma [1988] 169 ITR 5. With respect to the learned judge, the case lays down a sweeping proposition, in my humble view and for the reasons recorded in this judgment, I respectfully differ therefrom. In that case, the authority had acted casually by impleading as an accused a minor who was a six year-old boy and consequently was not liable for the acts of the partnership as postulated under the provisions of Section 278B of the Act. Thus, the case cited by learned counsel for the petitioners, on the face of it, is distinguishable from the facts of the present case.

"Therefore, the ratio of these decisions is that, if there is no allegation in the complaint that the accused are in actual management or control of the business, they cannot be prosecuted."

18. Still in another case Shital N. Shah v. ITO [1991] 188 ITR 376 (Mad), the court held as under (headnote) :

"Under Section 278B, the basic requirement is that the prosecution must prove that the persons concerned were in charge of, and were responsible to, the firm for the conduct of the business of the firm. It is only then that they can be vicariously prosecuted along with the firm. The proviso to Section 278B(1) of the Act will come into operation only after the initial onus cast on the prosecution under the main section gets discharged."

27. Thus, the consistent view which have been expressed by different High Courts of the country and even indicated by the Supreme Court in no uncertain terms are that where specific and definite averments are made in the complaint to attract the penal provisions and satisfy the basic ingredients postulated in such offence, it may not be open to the court to enter into an enquiry into the correctness or otherwise of the allegations at this initial stage while exercising inherent powers under Section 482 of the Code of Criminal Procedure or extraordinary jurisdiction under Article 226 of the Constitution of India. This court cannot, therefore, consider the case of the petitioners at this stage and go ahead to determine whether the petitioners are entitled to the benefit of the proviso to Section 278B of the Act. The situation may be entirely different where there are no allegations in the complaint to satisfy the basic ingredients constituting an offence under Sections 276C and 277 of the Act. In the present case, the complainant has prima facie shown the involvement of the petitioners with the aid of the provisions of Section 278B of the Act.