G ANANTHARAMIAH Vs. INCOME TAX OFFICER MADRAS

JUDGEMENT

(1.) THE 4th accused in E.O.C.C.Nos.431 to 568 of 1986 on the file of the learned Additional Chief Metropolitan Magistrate (E.O.2), Egmore, Madras, is the petitioner. Aggrieved with the order made by the lower Court in Crl.M.P.No.685 of 1986 filed by him under Sec.245, Crl.P.C, this revision petition is filed.

(2.) THE petitioner along with three other accused was charged for offences under Secs.276-B and 278-B of the Income Tax Act. THE petitioner/4th accused filed a Crl.M.P.No.685 of 1986 for discharging him under Sec.245, Crl.P.C. THE facts which led to the filing of the said application are as follows:

(3.) LEARNED counsel for the petitioner submitted that the petitioner is not a partner of the firm, the first accused. The petitioner has not been served with a notice under Sec.2(35) of the Income-tax Act treating the petitioner as the principal officer of the company and no document was filed to prove that the petitioner is treated as a principal officer of the company and no document was filed to prove that the petitioner is treated as a principal officer of the company. So, learned counsel for the petitioner Mr.T.K.Seshadri submitted that the petitioner is not a person responsible for paying the amount under Sec.20 of the income-tax Act and that he is also not responsible for deducting the income-tax at source and payment of the amount. Therefore, he contended that the petitioner cannot be stated to be incharge and responsible to the company for the conduct of the business of the company within the meaning of Sec.278(B) of the Income-tax Act. LEARNED counsel for the petitioner also referred to the evidence of P.Ws.1 to 3 and also the Exs.P-1311 to 214 by which, he stated, it could not be found that the petitioner has committed the offences within the meaning of Sec.276-B of the Act. Sec.276-B of the Act contemplates that the person without reasonable cause or excuse failed to? deduct or after deducting fails to pay as required by or under the provisions of the Act alone will be liable for the said offence. Therefore, before the petitioner is accused of such offence, two ingredients have to be satisfied by the respondent, namely (a) the petitioner should be the person coming under Sec.278-B read with Sec.204 and Sec.2(35) of the Act and (b) such a person without reasonable cause of excuse failed to deduct or after deducting failed to pay the tax. LEARNED counsel for the petitioner also pointed out that the evidence of P.Ws.1 to 3 and Exs.P-131 to P-214 would not show that the petitioner could be said to be in charge and in the conduct of the business of the first accused firm within the meaning of Sec.278(b) of the Act. The evidence of P.W.2 is clear that the petitioner was an employee of the first accused firm and that there is no evidence let in by P.Ws.1 to 3 to show that the petitioner had committed the offence satisfying the ingredients of Sec.276-B of the Act falling within the definition of Sec.278-B of the Act.