Jharkhand High Court
M/S. Kashish Developers Limited vs Union Of India on 21 November, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 639 of 2024
1. M/s. Kashish Developers Limited, (a company
registered under the Companies Act, 1956/2013),
having its registered office at 87, Old A.G. Colony,
Kadru P.O. Doranda, P.S. Argora, District Ranchi
(Jharkhand), PIN 834 003, through its Managing
Director, Ajit Choudhary, alias Ajit Kumar
Choudhary, aged 35 years, son of Shri Sushil Kumar
Choudhary, resident of 87, Ratnapriya, Old A.G.
Colony, Kadru, P.O. Doranda, P.S. Argora, District
Ranchi (Jharkhand), PIN 834-003.
2. Ajit Choudhary, alias Ajit Kumar Choudhary, aged
35 years, son of Shri Sushil Kumar Choudhary,
resident of 87, Ratnapriya, Old A.G. Colony, Kadru,
P.O. Doranda, P.S. Argora, District Ranchi
(Jharkhand), PIN 834 003.
..... ... Petitioners
Versus
1. Union of India, Income Tax Department, through
Assistant Commissioner of Income Tax, TDS Circle,
3d Floor, Central Revenue Building (Annexe), Main
Road, P.O. G.P.O., P.S. Kotwali, District Ranchi
(Jharkhand), PIN 834001.
2. The State of Jharkhand.
..... ... Respondents
with
W.P.(Cr.) No. 638 of 2024
1. M/s. Kashish Developers Limited, (a company
registered under the Companies Act, 1956/2013),
having its registered office at 87, Old A.G. Colony,
Kadru P.O. Doranda, P.S. Argora, District Ranchi
(Jharkhand), PIN 834 002, through its Managing
Director, Ajit Choudhary, alias Ajit Kumar
Choudhary, aged 35 years, son of Shri Sushil Kumar
Choudhary, resident of 87, Ratnapriya, Old A.G.
Colony, Kadru, P.O. Doranda, P.S. Argora, District
Ranchi (Jharkhand), PIN 834002.
2. Ajit Choudhary, alias Ajit Kumar Choudhary, aged
35 years, son of Shri Sushil Kumar Choudhary,
resident of 87, Ratnapriya, Old A.G. Colony, Kadru,
P.O. Doranda, P.S. Argora, District Ranchi
(Jharkhand), PIN 834 002.
..... ... Petitioners
Versus
1. Union of India, Income Tax Department, through
-1- W.P.(Cr.) No. 639 of 2024 &
its analogous cases
Assistant Commissioner of Income Tax, TDS Circle,
3d Floor, Central Revenue Building (Annexe), Main
Road, P.O. G.P.O., P.S. Kotwali, District Ranchi
(Jharkhand), PIN 834001.
2. The State of Jharkhand.
..... ... Respondents
with
W.P.(Cr.) No. 646 of 2024
1. M/s. Kashish Developers Limited, (a company
registered under the Companies Act, 1956/2013),
having its registered office at 87, Old A.G. Colony,
Kadru P.O. Doranda, P.S. Argora, District Ranchi
(Jharkhand), PIN 834 002, through its Managing
Director, Ajit Choudhary, alias Ajit Kumar
Choudhary, aged 35 years, son of Shri Sushil Kumar
Choudhary, resident of 87, Ratnapriya, Old A.G.
Colony, Kadru, P.O. Doranda, P.S. Argora, District
Ranchi (Jharkhand), PIN 834002.
2. Ajit Choudhary, alias Ajit Kumar Choudhary, aged
35 years, son of Shri Sushil Kumar Choudhary,
resident of 87, Ratnapriya, Old A.G. Colony, Kadru,
P.O. Doranda, P.S. Argora, District Ranchi
(Jharkhand), PIN 834 002.
..... ... Petitioners
Versus
1. Union of India, Income Tax Department, through
Assistant Commissioner of Income Tax, TDS Circle,
3d Floor, Central Revenue Building (Annexe), Main
Road, P.O. G.P.O., P.S. Kotwali, District Ranchi
(Jharkhand), PIN 834001.
2. The State of Jharkhand.
..... ... Respondents
with
W.P.(Cr.) No. 653 of 2024
1. M/s. Manor Infraprojects Limited, (a company
registered under the Companies Act, 1956/2013),
having its registered office at 87, Old A.G. Colony,
Kadru P.O. Doranda, P.S. Argora, District Ranchi
(Jharkhand), PIN 834 002, through its Director, Arun
Kumar Mishra, aged about 49 years, son of Late Badri
Mishra, resident of E.W.S. 142, Harmu Housing
Colony, Harmu, P.O. Doranda, P.S. Argora, District
Ranchi (Jharkhand), PIN 834 002.
2. Arun Kumar Mishra, aged about 49 years, son of
Late Badri Narayan Mishra @ Badhri Mishra,
resident of E.W.S. 142, Harmu Housing Colony,
-2- W.P.(Cr.) No. 639 of 2024 &
its analogous cases
Harmu, P.O. Doranda, P.S. Argora, District Ranchi
(Jharkhand), PIN 834 002.
3. Rajeev Kumar, aged about 62 years, son of Late
Sachidanand Singh, resident of Ishwari Enclave Flat
No. 101, Block-A, Kanke Road, Near Rock Garden,
Vidyapati Nagar, Gandhi Nagar, P.O.- Ranchi
University, P.S. Gonda, District Ranchi (Jharkhand),
PIN 834008.
..... ... Petitioners
Versus
1. Union of India, Income Tax Department, through
Assistant Commissioner of Income Tax, TDS Circle,
3d Floor, Central Revenue Building (Annexe), Main
Road, P.O. G.P.O., P.S. Kotwali, District Ranchi
(Jharkhand), PIN 834001.
2. The State of Jharkhand.
..... ... Respondents
with
W.P.(Cr.) No. 654 of 2024
1. M/s. Kashish Developers Limited, (a company
registered under the Companies Act, 1956/2013),
having its registered office at 87, Old A.G. Colony,
Kadru P.O. Doranda, P.S. Argora, District Ranchi
(Jharkhand), PIN 834003, through its Managing
Director, Ajit Choudhary, alias Ajit Kumar
Choudhary, aged 35 years, son of Shri Sushil Kumar
Choudhary, resident of 87, Ratnapriya, Old A.G.
Colony, Kadru, P.O. Doranda, P.S. Argora, District
Ranchi (Jharkhand), PIN 834003.
2. Ajit Choudhary, alias Ajit Kumar Choudhary, aged
35 years, son of Shri Sushil Kumar Choudhary,
resident of 87, Ratnapriya, Old A.G. Colony, Kadru,
P.O. Doranda, P.S. Argora, District Ranchi
(Jharkhand), PIN 834 003.
..... ... Petitioners
Versus
1. Union of India, Income Tax Department, through
Assistant Commissioner of Income Tax, TDS Circle,
3d Floor, Central Revenue Building (Annexe), Main
Road, P.O. G.P.O., P.S. Kotwali, District Ranchi
(Jharkhand), PIN 834001.
2. The State of Jharkhand.
..... ... Respondents
with
W.P.(Cr.) No. 790 of 2024
-3- W.P.(Cr.) No. 639 of 2024 &
its analogous cases
1. M/s. Indian Progressive Construction Private
Limited "Aashtha" Company registered under the
Companies Act, 1956, having its office near Gati Devi
D.A.V. School, Cestair Town, P.O. & P.S. Deoghar,
District Deoghar, PIN 814112 (Jharkhand), thorough
its Director namely, Jitesh Rajpal, aged about 48
years, son of Late Mahendar Rajpal, Resident of
Shivnath Ray Road, P.O. & P.S. Deoghar, District
Deoghar (Jharkhand).
2. Shri Jitesh Rajpal, aged about 48 years, son of Late
Mahendar Rajpal, Resident of Shivnath Ray Road,
P.O. & P.S. Deoghar, District Deoghar (Jharkhand).
..... ... Petitioners
Versus
Union of India, Income Tax Department, through
Sandeep Ganguly, at present posted as Assistant
Commissioner of Income Tax, TDS Circle, Dhanbad,
having its office at Aaykar Bhawan, Luby Circular
Road, Town Dhanbad, P.O. and P.S. Dhanbad
(Jharkhand).
..... ... Respondent
--------
CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
------
For the Petitioners : Mr. Sumeet Gadodia, Advocate.
: Mrs. Shilpi Sandil Gadodia, Advocate.
: Mr. Nillohit Chubey, Advocate.
: Mr. K. Hari, Advocate.
: Ms Sanya, Advocate.
: Ms. Amrita Singh, Advocate.
For the Income Tax : Mr. Kumar Vaibhav, Sr. S.C.
: Mr. Anurag Vijay, Jr. S.C.
: Mr. Durgesh Agarwal, Advocate.
For the State : Mr. Binit Chandra, A.C. to A.A.G.-III.
: Mr. Amit Raj Kisku, A.C. to G.A.-V.
------
04/ 21.11.2024 In all these writ petitions, common question of fact and law
are involved, in view of that all these writ petitions are being heard
together with the consent of the parties.
2. Heard Mr. Sumeet Gadodia, learned counsel appearing for
the petitioners, Mr. Kumar Vaibhav, learned senior standing counsel for
the Income Tax Department and Mr. Binit Chandra, learned counsel
appearing for the State in all these cases.
3. In W.P.(Cr.) No. 639 of 2024, prayer is made for quashing
-4- W.P.(Cr.) No. 639 of 2024 &
its analogous cases
of the entire criminal proceedings including the order taking cognizance
dated 01.10.2021, whereby, cognizance for the offence under Section
276-B read with Section 278-B of the Income Tax Act, has been taken
against the petitioners, appertaining to financial year 2015-16
corresponding to assessment year 2016-17, in connection with
Economic Offence Case No. 03 of 2021, pending in the court of learned
Special Judge, Economic Offence, Ranchi.
4. In W.P.(Cr.) No. 638 of 2024, prayer is made for quashing
of the entire criminal proceedings including the order taking cognizance
dated 19.08.2021, whereby, cognizance for the offence under Section
276-B read with Section 278-B of the Income Tax Act, has been taken
against the petitioners, appertaining to financial year 2013-14
corresponding to assessment year 2014-15, in connection with
Economic Offence Case No. 01 of 2021, pending in the court of learned
Special Judge, Economic Offence, Ranchi.
5. In W.P.(Cr.) No. 646 of 2024, prayer is made for quashing
of the entire criminal proceedings including the order taking cognizance
dated 19.08.2021, whereby, cognizance for the offence under Section
276-B read with Section 278-B of the Income Tax Act, has been taken
against the petitioners, appertaining to financial year 2014-15
corresponding to assessment year 2015-16, in connection with
Economic Offence Case No. 02 of 2021, pending in the court of learned
Special Judge, Economic Offence, Ranchi.
6. In W.P.(Cr.) No. 653 of 2024, prayer is made for quashing
of the entire criminal proceedings including the order taking cognizance
dated 24.08.2021, whereby, cognizance for the offence under Section
276-B read with Section 278-B of the Income Tax Act, has been taken
against the petitioners, appertaining to financial year 2017-18
corresponding to assessment year 2018-19, in connection with
-5- W.P.(Cr.) No. 639 of 2024 &
its analogous cases
Economic Offence Case No. 11 of 2021, pending in the court of learned
Special Judge, Economic Offence, Ranchi.
7. In W.P.(Cr.) No. 654 of 2024, prayer is made for quashing
of the entire criminal proceedings including the order taking cognizance
dated 01.10..2021, whereby, cognizance for the offence under Section
276-B read with Section 278-B of the Income Tax Act, has been taken
against the petitioners, appertaining to financial year 2017-18
corresponding to assessment year 2018-19, in connection with
Economic Offence Case No. 04 of 2021, pending in the court of learned
Special Judge, Economic Offence, Ranchi.
8. In W.P.(Cr.) No. 790 of 2024, prayer is made for quashing
of the entire criminal proceedings including the order taking cognizance
dated 15.03.2018, whereby, cognizance for the offence under Section
276-B read with Section 278-B of the Income Tax Act, has been taken
against the petitioners, appertaining to financial year 2016-17
corresponding to assessment year 2017-18, in connection with
Economic Offence Case No. 20 of 2018 (C.O. Case No. 20 of 2018),
pending in the court of learned Special Judge, Economic Offence,
Dhanbad. Further challenge is made for quashing of the order dated
02.04.2024, whereby the Miscellaneous Criminal Application No. 8504
of 2023, in connection with Economic Offence Case No. 20 of 2018,
has been rejected by the learned court, which was filed for discharge.
9. Mr. Sumeet Gadodia, learned counsel appearing for the
petitioners submits that the Economic Offence Case No. 01 of 2021 was
filed alleging that the TDS amount of Rs. 4,71,96,070/- was deposited
belatedly for the financial year 2013-14. He submits that the Economic
Offence Case No. 03 of 2021 was filed on the same ground and alleging
that the TDS amount of Rs. 3,39,52,479/- was deposited belatedly for
the financial year 2015-16. He further submits that the Economic
-6- W.P.(Cr.) No. 639 of 2024 &
its analogous cases
Offence Case No. 02 of 2021 was filed alleging that Rs. 6,15,81,179/-
was belatedly deposited with the Income Tax Department for the
financial year 2014-15. He then submits that the Economic Offence
Case No. 04 of 2021 was filed with respect to late deposition of TDS
amount to the tune of Rs. 4,89,68,712/- for the financial year 2017-18.
He also submits that the Economic Offence Case No. 11 of 2021 was
filed alleging that the TDS amount of Rs. 1,86,25,894/- was deposited
belatedly for the financial year 2017-18. He submits that the Economic
Offence Case No. 20 of 2018 (C.O. Case No. 20 of 2018) was filed
alleging that the TDS amount to the tune of Rs. 33,65,511/- was
deposited belatedly with the Income Tax Department for the financial
year 2016-17.
10. Learned counsel appearing for the petitioners in all these
cases submits that the petitioner No. 1 in all these cases is the company
registered under the Companies Act, 1956/2013 and its Directors are
the citizens of India. He submits that all these cases have been
registered alleging therein that the TDS amount deducted by the
company has been belatedly deposited with the Income Tax Department
and the learned court has been pleased to take cognizance under Section
276(B) and Section 278(B) of the Income Tax Act by the different
orders. He further submits that the petitioners have been show caused
and pursuant to that show cause reply was filed, wherein the petitioners
have categorically stated that there was delay in deposit of the TDS
amount due to acute financial hardships. He submits that even prior to
issuance of the show cause notice, the entire TDS amount with interest
has already been deposited with the Income Tax Department by the
respective companies. He then submits that this aspect of the matter
has already been decided by this court in the case of Dev Multicom Pvt.
Ltd & Anr. Versus State of Jharkhand & Anr., reported in 2022 SCC
OnLine Jhar 537. He refers to paras-17 and 18 of the said judgment,
-7- W.P.(Cr.) No. 639 of 2024 &
its analogous cases
which is quoted as under:-
"17. It is an admitted fact that the TDS
amount in all these cases were deposited with
interest and the chart with respect to the
same is also annexed with the counter
affidavit of the Income Tax Department,
wherein the date of deduction and date of
depositing the said amount has been
mentioned. However, some delay occurred in
depositing the TDS. Apart from one or two
cases, the deducted amount are not more than
50,000/-. While passing the sanction under
Section 279(1) of the Act, the sanctioning
authority has not considered the CBDT
instructions, bearing F. No. 255/339/79-IT
(Inv.) dated 28.05.1980, issued in this regard
by the CBDT. The CBDT guidelines was
considered by the Patna High Court in the
case of Sonali Autos (P) Ltd. (Supra) and
after considering this guidelines, the Court
has interfered with the matter and quashed
the entire criminal proceedings. In CBDT
instructions, it is mentioned that prosecution
under Section 276(B) of the Act shall not
normally be proposed when the amount
involved and / or the period of default is not
substantial and the amount in default has
also been deposited in the meantime to the
credit of Government. No such consideration
will, of course, apply to levy of interest under
Section 201(1A) of the Act. This is quoted in
the case of Sonali Autos (P) Ltd. (Supra).
Moreover after receiving the deducted
amount with interest, the prosecution has
been launched against the petitioners, which
is not in accordance with law. If the
petitioners failed to deposit the amount in
question within the stipulated time, i.e. by the
7th day of the subsequent month, it was
required to launch the prosecution
immediately, which has not been done in the
cases in hand. Moreover Section 278(AA) of
the Act clearly states that no person for any
failure referred to under Section 276(B)of the
-8- W.P.(Cr.) No. 639 of 2024 &
its analogous cases
Act shall be punished under the said
provisions, if he proves that there was
reasonable cause for such failure. The
judgment relied by Ms Amrita Sinha, the
CBDT guidelines were not considered. On
this ground these cases are distinguishable in
view of the facts and circumstances of the
cases relied upon by Ms. Amrita Sinha.
18. The amount has already been
deposited with interest and there is no reason
why the criminal proceeding shall proceed
and the criminal proceeding was launched
after receiving the said amount with interest,
had it been a case that the case was
immediately instituted and thereafter the TDS
amount has been deposited with interest, the
matter would have been different. As such the
continuation of the proceedings will amount
to an abuse of the process of the Court."
11. Mr. Gadodia, learned counsel appearing for the petitioners
submits that the said order of this court was challenged before the
Hon'ble Supreme Court in SLP (Crl.) Diary No. 3073 of 2023, wherein
the Hon'ble Supreme Court has been pleased to dismiss the said
challenge. He further submits that the order of this court was further
taken into consideration by the Hon'ble Orissa High Court as well as
Hon'ble Bombay High Court and pursuant to that even an amendment
is made in the Finance Act, 2024, wherein a proviso has been inserted
under Section 276(B) to the effect that if the TDS amount has already
been deposited, the prosecution cannot be launched. On these grounds,
learned counsel appearing for the petitioners submits that the entire
criminal proceedings in all these matters may kindly be quashed.
12. Mr. Kumar Vaibhav, learned senior standing counsel
appearing for the Income Tax Department in all these matters submits
that so far as the judgment of this court is concerned, the same has
already been affirmed up to the Hon'ble Supreme Court and pursuant to
-9- W.P.(Cr.) No. 639 of 2024 &
its analogous cases
that an amendment is there in the Finance Act, 2024. He submits that
the amount of TDS was deposited belatedly, which is in higher side and
the petitioners are happened to be the habitual in depositing the TDS
amount belatedly.
13. Mr. Chandra, learned counsel appearing for the State in
respective cases submits that the matters are covered in light of the
above judgment.
14. In view of the above submissions of the learned counsel
appearing for the respective parties, it is an admitted fact that the TDS
amount in question, which is the subject matter of difference economic
offence cases as well as C.O. Case, has already been deposited with
interest with the Income Tax Department belatedly and the same has
not been denied and if such a situation is there, the case of the
petitioners are fully covered in light of the judgment of this court in the
case of M/s. Dev Multicom Pvt. Ltd (Supra), which has been affirmed
by the Hon'ble Supreme Court in SLP (Crl.) Diary No. 3073 of 2023
and pursuant to that in the Finance Act, 2024, the Parliament on his
own wisdom has made amendment in Section 276(B), wherein it has
been effected as under:-
"84. In section 276B of the Income-tax Act,
the following proviso shall be inserted with
effect from the 1st day of October, 2024,
namely:-
"Provided that the provisions of this
section shall not apply if the payment
referred to in clause (a) has been made to the
credit of the Central Government at any time
on or before the time prescribed for filing the
statement for such payment under sub-section
(3) of section 200.".
15. In view of the above and considering the judgment of this
court in the case of M/s Dev Multicom Pvt. Ltd. (Supra), which was
-10- W.P.(Cr.) No. 639 of 2024 &
its analogous cases
affirmed by the Hon'ble Supreme Court and pursuant to that an
amendment is there in the Finance Act, 2024 and huge amount of TDS
has already been deposited with the Income Tax Department, which has
not been denied in the counter affidavit, filed by the Income Tax
Department in respective cases, as such, to allow the proceeding to
continue will amount to an abuse of the process of law.
16. As such, the entire criminal proceedings and the cognizance
orders in their respective cases, passed by the learned Special Judge,
Economic Offices, Ranchi, in the respective Economic Offence Cases /
C.O. Case, whereby cognizance has been taken against the petitioners
for the offences under Sections 276(B) and 278(B) of the Income Tax
Act, pending in the Court of learned Special Judge, Economic
Offences, Ranchi / Dhanbad, are hereby, quashed.
17. All these writ petitions are allowed and disposed of.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
[A.F.R.]
-11- W.P.(Cr.) No. 639 of 2024 &
its analogous cases
