Bombay High Court
Petrus Lambertus Maria Hermans vs Income Tax Officer Acit Tds 1-3 ... on 13 March, 2023
Bench: Amit Borkar
8-wp-630-2023.doc
Ghuge
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.630 OF 2023
Petrus Lambertus Maria Hermans ... Petitioner
V/s.
Income Tax Officer ACIT (TDS) -1(3),
Smt, K.G. Mittal Ayurvedic Hospital
Building, Charni Road (West), Mumbai-
400 002 and Anr ... Respondents
Mr. Aditya Iyer a/w Shreyas Lele i/b Khaitan Legal
Associates for the petitioner.
Mr. Amit Munde SPP for respondent No.1.
Mr. M.G. Patil APP for the State.
CORAM : AMIT BORKAR, J.
DATED : MARCH 13, 2023
P.C.:
1. The challenge in this petition is to the order dated 18 th
November, 2019 issuing process against the petitioner and others
for alleged offence under Section 276B read with Section 278B of
the Income Tax Act, 1961.
2. The contentions raised on behalf of the petitioner are that
the petitioner is professional executive director who had not taken
part in the affairs of the Company in last Six years, he is resident
of Netherlands, the averments in the complaint are insufficient to
constitute offence under Section 276B read with Section 278B of
the Income Tax Act, 1961.
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3. In support of his submission he relied on the judgment of the
Apex Court in the case of National Small Scale Industries
Corporation Vs. Harmeet Singh Paintal and Another reported in
(2010) 3 SCC 330 and Dayle De'souza Vs. Government of India
Through Deputy Chief Labour Commissioner © and Anr reported
in 2021 SCC OnLine SC 1012.
4. Per contra, learned advocate for the respondent No.1 invited
my attention to the provisions of Section 276B read with Section
278B of the Income Tax Act, 1961. Additionally, he invited my
attention to the sanction order which takes into consideration the
role of the petitioner, treating him as a Director Incharge and
responsible for the affairs of the Company. He also invited my
attention to the order passed by the learned Commissioner, prima
facie, recording a satisfaction that the conditions under Section
276B and 278B are fulfilled. In support of his case he relied on the
judgment of Apex Court in the case of Madhumilan Syntex Ltd and
others Vs. Union of India and Anr reported in (2007) 11 SCC 297.
5. In the wake of submissions made on behalf of the petitioner
it is necessary to consider the averments in the complaint.
6. In paragraph 6 and 8 of the complaint reads as under :-
6. The complainant submits that the above named
Accused being responsible persons for paying tax as per
section 204 of the I.T. Act have committed a default
under Section 200 of the I.T. Act, 1961 read with Rule
30 of the Income Tax Rules, 1962 by failing without
reasonable cause or to pay the tax so deducted under
various section of the I.T. Act, 1961 from payments
made to various parties. That the said default amounts
to an offence punishable u/s 276B r/w S.278B of the
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I.T. Act, 1961.
8. It is further respectfully submitted thathe
Accused are being the directors Accused are also liable
for the said acts, omission and contravention
committed by the Accused and therefoer they are also
liable to be prosecuted and to be punished for the act
committed by the Accused as per U/s. 276-B of the I.T.
Act, 1961.
7. Additionally, paragraph 3 as reflected in sanction order reads
as under :-
From the Return of Income for AY 2017-18. It is
observed that there are five directors namely Vipin
Jain, Paramjitsingh Datarsingh Sahi, Karanraj Parmjeet
Sahi Harkeerat Paramjitsingh Sahi and Petrus
Lambertus Maria Hermans. The directors were in
charge of and responsible to the Company & for
conduct of business of the Company for the relevant
year and therefore liable for prosecution within the
meaning of Section 278B of the Act.
8. Paragraph 9 of order of learned Commissioner of Income Tax
reads as under :-
9. Thus, the above mentioned persons being
persons responsible for paying tax as per section 204 of
the I.T. Act have committed a default under Section
200 of the I.T. Act, 1961 read with Rule 30 of the
Income Tax Rules, 1962, by failing without reasonable
cause or to pay the tax so deducted under various
sections of the I.T. Act, 1961 from payments made to
various parties. That the said default amounts to an
offence punishable u/s 276B r.w.s 278B of the I.T. Act,
1961.
9. Conjoint reading of the complaint along with sanction order
and the order passed by the learned Commissioner, at this stage,
are sufficient to comply with the requirement of necessary
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pleadings to hold a person as in charge and responsible for the
affairs of the company.
10. The requirements as mandated by paragraph 39 in the case
of National Small Industries Corporation Limited (supra) have
been made by making averments in paragraph 6 and 8 of the
complaint. Though the language of Section 278B is similar to
Section 141 of the Negotiable Instruments Act, 1881. However, in
case of complaint under Section 138 of the Negotiable Instruments
Act, 1881 there is no application of mind by the statutory
authorities before initiation of the complaint. In the case of
prosecution under Income Tax Act, sanction order and the order
passed by learned Commissioner of Income Tax indicate prima
facie application of mind by the statutory authorities before
initiation of the complaint under Section 276B read with Section
278B of the Income Tax Act, 1961.
11. Therefore, in my opinion, the respondent No.1 at this stage
has made out a sufficient case for proceeding against the
petitioner.
12. In so far as, the contention of the petitioner that he is not
residing in India and is resident of Netherlands for Six years is
concerned, learned advocate for the respondent No.1 invited my
attention to the sanction order which contains address of the
petitioner as being resident of Navi Mumbai, Maharashtra.
Whether the petitioner was actually residing in Netherland for Six
years or not has to be decided at the time of trial of the complaint
or at the appropriate stage which is permissible. At this stage,
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scope of inquiry is to ascertain as to whether the averments in the
complaint are sufficient to constitute offences alleged against the
petitioner or not.
13. On consideration of material which was before the learned
Magistrate, in the form of sanction order, order of learned
Commissioner of Income Tax and the averments in the complaint,
no interference is called for in order of issuance of process.
14. The writ petition is, therefore, dismissed. No costs.
(AMIT BORKAR, J.)
