ENGINEERS IMPEX PRIVATE LIMITED Vs. D D SHARMA

JUDGEMENT

(1.) These two criminal revision petitions involving the same common question challenge the legality and propriety of common order dated 18.7.1991 passed by learned Additional Chief Metropolitan Magistrate (ACMM) rejecting the applications of the petitioners under Section 245 of the Code of Criminal Procedure (for short "the Code") for discharge.

(2.) The petitioners arbeing prosecuted by the respondent Income Tax Officer under Section 276-B of the Income Tax Act (for short "the Act") in two cases for two different assessment years 1985-86 and 1986-87 for alleged violation of Section 194- A of the Act for which two complaints registered as Criminal Complaint No. 808- A/1 of 1987 and 808-B/l of 1987 were lodged by the Income Tax Officer. The petitioner No .lisa company while petitioner Nos. 2 and 3 are its Managing Director and Director. The grounds for prosecution are that the petitioner No. 1 had taken certain amounts as loans from (1) its Managing Director, (2) M/s. Marudhar ; Investment Pvt. Ltd. and (3) M/s. Jupiter Enterprises. During the assessment years 1985-86 and 1986-97, interest amounts of Rs. 18,000.00, Rs. 3,600.00 and Rs. 1,140.00 accrued due thereon had been credited to the interest accounts without deducting and paying to be the Government Tax (TDS) as required under Section 194-A of the Act and thereby having committed offence punishable under Section 276-B of the Act. In reply to the show-cause notice served on it the petitioner took the plea that interest was neither paid nor credited to the accounts of the creditors but credited in the "Interest Payable Account". This explanation was not found valid by the ITO on the ground that it was a device to avoid payment of the tax as according to him the crediting of interest in the "Interest Payable Account" amounts to credit of interest to the account of the person concerned. These complaints have been filed by the Income Tax Officer having been authorised by the Commissioner of Income Tax under Section 279(1) of the Act.

(3.) The Income Tax Officer on assessment held against the petitioner assessee and imposed a penalty of Rs. 3,366.00 besides interest under Section 201 of the Act each for the two years and also filed aforesaid two complaints. On appeal, the Commissioner of Income Tax (Appeals) took a contrary view and set aside the order levying / imposing interest and penalty. That order was later on also affirmed by the , Income Tax Appellate Tribunal (for short "the Tribunal") in its order dated 29th , May, 1992. After the first appellate order was passed, the petitioners had filed an application before the ACMM under Section 245(2) of the Code for their discharge and dismissing the two complaints which dismissed on 18.7.1991. These two revision petitions are directed against that common order.