Order 3

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: Ct. Cases 469/2023
INCOME TAX OFFICE (ITO)
Vs.
M/S NU TEK INDIA LTD AND ORS
CNR-DLCT02-005947-2023
27.07.2023
Present:- Sh. Baljeet Singh, ITO, Ward-76(1), New Delhi, in person
alongwith Sh. Manmeet Singh Arora, Ld. SPP for the complainant.
Amended memo of parties is filed by complainant, same is taken on record.
The complainant also placed on record the orders dated 23.08.2019 and 22.06.2020 passed
by NCLT Bench-IV, New Delhi. It is exceedingly clear from these orders that accused no. 1
is in liquidation. Since accused no. 1 is in liquidation, therefore, in terms of Section 33(5)
IBC, 2016, there is a prohibition on institution of legal proceedings against it. Accordingly,
the complaint qua accused no. 1 shall not be proceeded with.
Complaint u/s 200 Cr.P.C is made by the complainant through its AR Sh.
Baljeet Singh, ITO, Ward-76(1), New Delhi, alleging commission of offence punishable u/s
276B read with section 278B of The Income Tax Act, 1961 (hereinafter referred to as ‘The
Act’). Since, the present complaint is filed by a public servant acting in discharge of his
official duties and in course of his employment, so the formal examination of the AR of
complainant is dispensed with, in terms of proviso (a) of Section 200 Cr.P.C.
The inquiry under Section 202 Cr.P.C is not being conducted, in compliance
of judgments of Apex Court in the matters of ‘Shivjee Singh v. Nagendra Tiwary & Ors.’,
Crl. Appeal no.1158/2010, decided on 06.07.2010 and ‘M/s Cheminova India Limited &
Anr. v. State of Punjab & Ors.’ Crl. Appeal no.750/2021, decided on 04.08.2021.
The gravamen of accusation against the accused No.2 is that M/s Nu Tek India
Limited had deducted TDS of Rs.36,81,130/- during the financial year
Contd....
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2013-14 but it did not deposit the same in the government account within the time stipulated
as per the provisions of The Act and rule 30 of The Income Tax Rules. The complainant has
placed on record show cause notices issued, order passed under section 2(35) of The Act,
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the proposal sent to CIT concerned for grant of sanction, copy of show cause notice issued
by CIT, sanction accorded by CIT to prosecute the accused persons and TRACES report etc.
in support of its case.
An application u/s 200 Cr.P.C is also made along with the complaint seeking
exemption from personal appearance of AR of complainant on each date of hearing during
the course of proceedings. Considering the fact that the complaint is filed by the applicant in
discharge of his official duty, the application is allowed subject to the condition that he shall
be duly represented by the SPP on each date of hearing and he shall appear in person as and
when directed to do so.
Since order under section 2(35) of The Act has already been passed against
accused no. 2, therefore, in terms of section 204, all accused became persons responsible for
paying the TDS in terms of Section 204 of The Act. This court has jurisdiction to entertain
the present complaint.
From the entire material available on record, this court is of the considered
view that prima facie offence u/s 276B/278B of The Act is made out against accused no. 2
only. A detailed summoning order is not being passed in compliance of the order of the
Apex Court in 'Bhushan Kumar & Anr. v. State (NCT of Delhi) & Anr.' (2012) 5 SCC 424.
Accordingly, let summons be issued to accused no. 2 on filing complete copy of complaint,
PF, RC and Speed Post within a month from today returnable for 28.11.2023.
(Anurag Thakur)
ACMM(Special Acts) : Central District:
THC: Delhi: 27.07.2023
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