GAJANAND CHOTELAL Vs. STATE

JUDGEMENT

(1.) THIS application is directed against the impugned order dated December 23, 1974, passed by the learned Chief Judicial Magistrate, Ranchi, in Case No. CIII 208 of 1974, by which the learned Magistrate has taken cognizance against the petitioners for an offence under Section 276C of the Income-tax Act (hereinafter to be refer-red to as " the Act").

(2.) THE case has been initiated on the basis of a complaint which has been filed through S.N. Prasad, Income-tax Officer, Special Circle, Ranchi, It has been stated that petitioner No. 2, Chhotelal Khemka, carried on business in the name and style of the firm, M/s. Gajanand Chotelal, which happened to be the Hindu undivided family business. THE firm was an assessee under the Act and the entire transaction of the same business including the filing of return was being done by petitioner No. 2 as karta of the Hindu undivided family. During the assessment proceeding for the assessment year 1971-72, the return had been filed on November 19, 1973, i.e., much after the due date and, consequently, the Department issued various notices under Sections 142(1) and 143(2) of the Act. No response has been made to those notices. THE accused persons also failed to file return and also to produce the books of account and documents in spite of the service of the said notice. By way of illustration, it has been stated that the return for the assessment year 1970-71 was filed on January 25, 1973, and the return for the assessment year 1972-73 was filed on November 19, 1973, which were long after the due dates and thus he was in the habit of filing belated returns.

(3.) IT appears from a perusal of the complaint petition that the complainant has alleged that there has been delay in the filing of the complaint and thus had made a prayer to condone the delay as contemplated under Section 473 of the Code. In support of this, I do not find any supporting order as to whether the Magistrate concerned, at the time of cognizance, has considered the matter of condonation as contemplated under Section 473 of the Code. IT also does not appear from the impugned order that the question of limitation has been considered at all, When there was definite statement in the complaint petition itself that there has been delay and the delay be condoned, it was incumbent upon the learned Magistrate to hear the parties over the limitation matter and pass an appropriate order. IT is because, if in fact cognizance has been taken after the period of limitation, then naturally a valuable right had accrued to the petitioners and that has not been considered at all which becomes failure of principles of natural justice and statutory obligation upon the court taking cognizance.