Order 2

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: Ct. Cases 584/2023
INCOME TAX OFFICE (ITO)
Vs.
M/S SUPERCITY DEVELOPERS PVT LTD & ORS.
CNR-DLCT02-007484-2023
11.08.2023
Present:- Sh. Manmeet Singh Arora, Ld. SPP for the complainant.
An oral application u/s 91 Cr.P.C for placing on record copy of Master
Data of accused no. 1 company as available on the MCA website and details of
Directors of accused no. 1 is made on behalf of complainant by the Ld. SPP. The
copy of company master data and details of Directors of accused no. 1 are placed on
record in support of the application. Heard. Perused and considered. The Master
Data of accused no. 1 and its Directors details are necessary documents in terms of
section 91 Cr.P.C as they will help this court in deciding the issue of cognizance of
offence and summoning of accused more effectively. Accordingly, the oral
application is allowed and the aforementioned documents are taken on record.
Complaint u/s 200 Cr.P.C is made by the complainant through its AR
Sh. Data Ram, DCIT, Circle 77(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 persons is that the
accused no.1 M/s Supercity Developers Private Limited had deducted TDS of Rs.
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41,20,111/- during the financial year 2016-17 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, the proposal sent to CIT
concerned for grant of sanction, copy of show cause notice issued by CIT, sanction
accorded by CIT (TDS) 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 had already been passed
against accused no. 2 Deepak Migalani, therefore, in terms of section 204, he also
became person 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 the accused no. 1 & 2 only. No prima facie case is made out against
accused no. 3 to 5. 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. 1 & 2
on filing complete copy of complaint, PF, RC and Speed Post within a month from
today returnable for 05.12.2023.
(Anurag Thakur)
ACMM(Special Acts) : Central District:
THC: Delhi: 11.08.2023
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