Anish Modi vs Union Of India And Anr
2022 Latest Caselaw 12243 Bom

                                                                            40-crwp3962-2022.doc


                      AGK

                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CRIMINAL APPELLATE JURISDICTION

                                    WRIT PETITION NO.3962 OF 2022


                      Anish Modi                                  ... Petitioner
                                 V/s.
                      Union of India & Anr.                       ... Respondent


                      Mr. Aabad H. Ponda, Senior Advocate i/by Mr. ABH
                      Law LLP for the petitioner.
                      Ms. Mohinee Chaugule i/by Mr. Suresh Kumar for
                      respondent no.1/Union of India.
                      Mr. R.M. Pethe, APP for respondent no.2/State.

         Digitally
         signed by
         ATUL
ATUL     GANESH
GANESH   KULKARNI
KULKARNI Date:
         2022.11.29
         11:02:36
         +0530
                                                  CORAM : AMIT BORKAR, J.

                                                  DATED      : NOVEMBER 28, 2022
                      P.C.:

1. Heard Mr. Ponda, learned senior advocate. He invited my attention to paragraphs 4 and 5 of the complaint to urge that the vicarious liability of the accused is based on the expression "being directors". He placed reliance on the judgment of the Apex Court in the case of Municipal Corporation of Delhi v. Ram Kishan Rohatgi & Ors. reported in (1983) 1 SCC 1 wherein the Apex Court was concerned with the expression "as such", which according to him is similar to the words "being" used in the present complaint and, therefore, it does not satisfy the requirements of ingredients of vicarious liability.

40-crwp3962-2022.doc

2. In so far as averments of accused nos.2 to 4 being principal officers is concerned, he invited my attention to the definition of the 'principal officer' in section 2(35) of the Income Tax Act, 1960 to urge that both the ingredients of section 2(35)(b) needs to be satisfied. (one) he must be a person connected with the management or administration of the local company; and (two) the income-tax officer must have served upon him a notice of his intention of treating him as principal officer of the company.

3. To buttress his submission, he placed reliance on the judgment of the Andhra Pradesh High Court in Income Tax Officer, A-Ward, Nellore Circle, Nellore v. Official Liquidator reported in 1975 SCC OnLine AP 185.

4. The petitioners had knowledge of the present prosecution on 5th September 2022 when he received a copy of the summons.

5. Learned advocate for the respondent seeks time to file reply affidavit.

6. In that view of the matter, the petitioner has made out a case for grant of ad-interim relief.

7. Issue notice to the respondents, returnable on 18th January 2023.

8. Till 20th January 2023, there shall be ad-interim relief in terms of prayer clause (d).

(AMIT BORKAR, J.)