Orissa High Court

Yash Marothia vs Union Of India ....... Opp. Party on 1 May, 2024

      THE HIGH COURT OF ORISSA AT CUTTACK

                               CRLMC No.824 of 2024
      (In the matter of an application under Section 482 of the Criminal Procedure Code, 1973)
                                            -----------

Yash Marothia                                             .......                 Petitioner


                                     -Versus-

Union of India                                             .......                Opp. Party


      For the Petitioner             : Mr. Rudra Prasad Kar, Senior Advocate
                                       Mr. A. Khandelwal, Advocate

      For the Opp. Party             : Mr. Subash Chandra Mohanty
                                       Senior Standing Counsel (Income Tax)


CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

                        JUDGMENT

_________________________________________________________

Date of Hearing: 01.05.2024 : Date of Judgment : 01.05.2024 _________________________________________________________

S.S. Mishra, J.

1. In the present petition, the petitioner is assailing the order dated

22.02.2023 passed by the learned Addl. Chief Judicial Magistrate

(Special Court), Cuttack in 2(c) CC Case No.13 of 2023 whereby the

cognizance for the offences under Sections-276B and 276BB of the

Income Tax Act, 1961 has been taken against the petitioner.

2. The complaint case was filed by the Revenue, inter alia, alleging

that the petitioner has deducted TDS of Rs.59,02,093/- and collected

TCS of Rs.57,27,898/- for the financial year 2019, but the same was not

deposited with the revenue within the stipulated time frame. There was

delay in depositing the said amount ranging from 1 day to 173 days. On

the basis of the aforementioned allegation, the complaint was filed

against the petitioner by the Revenue.

3. The petitioner in the defence submitted that the delay in depositing

the TDS and TCS amount was caused due to the prevailing COVID-19

restriction then. However, subsequently the amount has been deposited

with interest. The following chart would indicate the extent of delay

caused in depositing the amounts as alleged:

TDS & TCS WORKING

Sl.No. Quarter Months Due Date Date of Delay Payment Day 1 1st Qtr. Apr-19 07.05.2019 07.06.2019 30 days May-19 07.06.2019 07.06.2019 0 days June-19 07.07.2019 12.07.2019 5 days st 1 Qtr. Return April-2019 to Jun- 31.07.2019 26.07.2019 0 days

nd 2 2 Qtr. Jul-19 07.08.2019 07.08.2019 0 days Aug-19 07.09.2019 07.09.2019 0 days

Sep-19 07.10.2019 14.10.2019 7 days nd 2 Qtr. July 2019 to Sep- 31.10.2019 01.11.2019 1 day Return 2019 delay rd 3 3 Qtr. Oct-19 07.11.2019 07.11.2019 0 days Nov-19 07.12.2019 07.12.2019 0 days Dec-19 07.01.2020 07.01.2020 0 days III Rd Qtr Oct-2019 to Dec- 31.01.2020 30.01.2020 0 days Return 2019 th 4 4 Qtr. Jan-20 07.02.2020 07.02.2020 0 days Feb-20 07.03.2020 07.03.2020 0 days Mar-20 07.04.2020 20.07.2020 111 days th

4 Qtr. Return Jan-2020 to 31.07.2020 31.07.2020 0 days March-2020

4. Despite the aforementioned explanation, the revenue went ahead

and filed the complaint. Learned trial Court, without appreciating the

peculiarity of the present case, has taken cognizance of the offence vide

the impugned order. Hence, the petitioner seeks indulgence of this Court

at this stage and prays for quashing of the entire proceeding.

5. Mr. Rudra Prasad Kar, learned Senior Counsel along with Mr. A.

Khandelwal, learned counsel appearing for the petitioner has relied upon

the judgment of this Court dated 15.04.2024 passed in the case of Sree

Metaliks Limited and others vs. Union of India and another in

CRLMC No.1921 of 2023. Mr. Kar, learned Senior Counsel submits that

the case of the present petitioner is squarely covered by the

aforementioned judgment of this Court. He relies upon paragraph-10 of

the above judgment, which reads as under:

"10. Taking into consideration the rival contentions of learned counsels for the parties and the judgments relied upon by the petitioners, I am of the considered view that the maximum delay of 394 days for depositing the TDS amount to the revenue account have been well explained by the petitioners, therefore, the authorities ought to have taken into consideration same, particularly for the reasons that the petitioners-company has suffered the I.B. proceeding and the restriction imposed during the COVID-19 pandemic, I am of the view that the petitioners case is directly covered by the judgments cited in the case of Dev Multicom Pvt. Ltd. (supra) and M/s. D.N. Homes Pvt. Ltd. Khurda & another (supra), because the prosecution indeed has been initiated by the opposite parties against the petitioners after having received the TDs amount along with the interest. Therefore, the entire proceeding arising out of 2(c) CC Case No.09 of 2023 pending in the Court of the learned Additional Chief Judicial Magistrate (Spl.)-cum-Asst. Sessions Judge, Cuttack and the consequential proceedings arising therefrom qua the petitioners stands quashed."

The case of the petitioner is also covered by the Circular No F No

285/90/2008-IT(Inv-I)/05 dated 24.04.2008, which has been in extenso

reproduced in the judgment of Sree Metaliks Limited (supra).

6. Mr. Subash Chandra Mohanty, learned Senior Standing Counsel

for the Income Tax Department does not dispute the fact that the case of

the petitioner is covered by the judgment of this Court in Sree Metaliks

Limited (supra).

7. Taking into consideration the submissions made by learned

counsels for the parties at the Bar and relying upon the judgment of this

Court in Sree Metaliks Limited (supra), I am of the considered view that

the present petition deserves merit. Accordingly, the same is allowed.

8. The order dated 22.02.2023 passed by the learned Addl. Chief