Interim Order 2

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: Ct. Cases 585/2023
INCOME TAX OFFICE (ITO)
Vs.SHUBHKAMNA BUILDTECH PVT LTD & ORS.
CNR-DLCT02-007485-2023
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, copy of details of Directors of accused no. 1, copies of seven
orders all dated 12.09.2022 passed by NCLT is made on behalf of complainant by
the Ld. SPP. The aforementioned documents are placed on record in support of the
application. Heard. Perused and considered. The aforementioned documents are
desirable 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. Perusal of the orders passed by NCLT, New Delhi
Bench-IV, Delhi, shows that a resolution plant qua accused no. 1 has been approved.
Since the resolution plant has already been approved, therefore, this court cannot
take any action against accused no.1 as mandated by Section 32A of IBC. Hence,
the proceedings qua accused no. 1 stand stopped.
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.
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The gravamen of accusation against the accused persons is that M/s
Shubhkamna Buildtech Private Limited had deducted TDS of Rs.1,80,42,250/-
during the financial year 2014-15 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 Divakar Sharma, 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. 2. No prima facie case is made out against accused no. 3
& 4. 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
05.12.2023.
(Anurag Thakur)
ACMM(Special Acts) : Central District:
THC: Delhi: 11.08.2023
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