High Court Of Bombay
Income Tax Officer vs. Sultan Enterprises & Ors.
Sections 276B, 287B
J.N. Patel, J.
Crl. Revision Appln. No. 62 of 1999
21st December, 2001
Counsel Appeared
A.S. Jaiswal, for the Applicant : Sharad Bhattad, for the Respondents
JUDGMENT
J.N. PATEL, J. :
Heard learned counsel for the parties. The applicant is the original complainant who filed complaint against the respondents for having committed offence under s. 276B r/w s. 278B of the IT Act, 1961, which has been registered as Regular Criminal Case No. 146 of 1992. The respondents moved the learned Chief Judicial Magistrate, Chandrapur, seeking their discharge from it and by order dt. 8th Feb., 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 s. 221(1)(c) of the IT Act, and therefore they cannot be prosecuted again on the same facts for having committed offence under s. 276B of the IT Act on the application of the principle of double jeopardy as defined under s. 300 of the Cr.P.C.. 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 ss. 276B and 278B of the IT Act. The facts of the case are not much in dispute. The offence in question relates to non-deposit of tax deducted at source 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 ss. 276B and 278B of the IT Act, 1961. The learned C.J.M. erred in applying the principle of double jeopardy as provided under s. 300 of the Cr.P.C. for the simple reason that the recovery of the amount due and payable by the respondent-firm to the IT Department has nothing to do with the criminal prosecution because it is a distinct provision inviting penal action for the default committed by the firm. They are liable both for recovery of the amount with interest and penalty so also for prosecution for having committed offence punishable under s. 276B of the IT 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 s. 278B would be liable to be prosecuted. Therefore, the impugned order is quashed and set aside. The trial Court is directed to take up the case for trial and dispose of 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. The revision application is thus disposed of.
[Citation : 256 ITR 185]
