Shaw Wallace and Co. Ltd. Vs. Commissioner of Income-tax (Tds) and ors. (No. 1) - Court Judgment

Bhattacharya J.

1. By this writ application the writ petitioner has prayed for setting aside the decision to initiate prosecution against the petitioner under Section 276B of the Income-tax Act, 1961, for the financial years mentioned in the prayer portion of this writ application.

2. There is no dispute that in the past the respondents authority issued a show cause notice upon the petitioner for explaining why prosecution under Section 276B of the Income-tax Act, 1961, for failure on the part of the company to pay to the credit of the Central Government, the tax deducted at source as required under the provisions of Chapter XVII-B of the Income-tax Act, 1961, should not be initiated.

3. The petitioner had shown cause alleging that it had sufficient and valid ground. There is no dispute that although several hearings had taken place, no decision in writing was communicated to the petitioner about the result of such show cause.

4. It is alleged in this application that the petitioner has come to know that the respondent authority has taken a decision to initiate proceeding under the aforesaid provisions.

5. The learned advocate appearing on behalf of the petitioner vehemently contended before this court that in the instant case initially penalty was imposed upon the petitioner for the self-same offence, but subsequently on an appeal being preferred such penalty was set aside not on merit but on the ground of want of jurisdiction of the officer who imposed such penalty. Thereafter, however, the respondent authority did not proceed further for imposition of penalty although liberty was given by the appellate authority to initiate fresh proceeding for penalty. By referring to the aforesaid fact, learned counsel appearing for the petitioner contends that the fact itself shows that since the petitioner had valid and sufficient reason for not depositing the amount, the respondents authority decided not to proceed further for imposition of penalty. According to him, if the respondent authority decided not to proceed further for imposition of penalty there is no valid reason for prosecuting the petitioner for the self-same reason.

6. In other words, learned counsel for the petitioner tried to convince me that this is a case where the petitioner had valid and sufficient ground for not depositing the amount and as such this is a fit case where the prosecution should be quashed.

7. This application has been opposed by the respondents contending that no valid ground has been made out for quashing of the decision to prosecute.

8. After hearing learned counsel for the parties and after going through the materials on record, I am, however, not inclined to entertain this application at this stage. In a given case whether there is just and sufficient reason for not depositing the tax deducted at source is always a question of fact depending upon appreciation of the evidence produced before the court. The pleas taken by the petitioner in this writ application will all be available to them in the criminal trial and if they can establish that those are sufficient, the criminal prosecution will fail. But at this stage, there is no scope for pre-empting the said criminal proceeding by entertaining this writ application. The position, however, would have been different if the petitioner could convince this court that even if the allegations made by the respondents were all true those facts did not constitute any offence under Section 276B of the Income-tax Act. I, thus, find no reason to entertain this application at this stage in view of the fact that the questions involved are all disputed questions of facts to be gone into on consideration of the evidence.

9. I, thus, reject this application on that ground alone.

10. I make it clear that I have not gone into the merits; simply because I am not willing to decide such question before initiation of criminal proceedings, I have decided not to entertain this application.

11. The writ application is, thus, dismissed.

12. There will be no order as to costs.

13. All parties are to act on a xerox signed copy of this dictated order on the usual undertaking.