Income Tax Officer (T.D.S.), ... vs Sultan Enterprises, Chandrapur ...
2001 Latest Caselaw 983 Bom

JUDGMENT

J.N. Patel, J.

1. Heard the learned Counsel for the parties.

2. The applicant is the original complainant who filed complaint against the respondents for having committed offence under Section 276B read with Section 278-B of the Income Tax Act, 1961, which has been registered as Regular Criminal Case No. 146/1992. The respondents moved the learned Chief Judicial Magistrate, Chandrapur seeking their discharge from it, and by order dated 8-2-1999 the learned Chief Judicial Magistrate, arrived at a finding that there is no ground for proceedings against the accused as they have not committed any offence, on the ground that the respondents have already been saddled with penalty under Section 221(1)(c) of the Income Tax Act, and therefore they cannot be prosecuted again on the same facts, for having committed offence under Section 276-B of the Income Tax Act, oh the application of principle of Double Jeopardy, as defined under Section 300 of Criminal Procedure Code. Secondly, the respondent/original accused nos. 3 to 8 cannot be held vicariously liable for the default on the part of the complainant, and thereby discharging the respondents of the offence punishable under Section 276B and 278B of the Income Tax Act.

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. 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.

4. Therefore, the impugned order is quashed and set aside. The trial Court is directed to take up the case for trial and dispose it in accordance with law. The respondent - Firm would be entitled to raise all pleas available to them under the law by way of defence.

5. Revision application is thus disposed off.