Allowing the criminal revision petition, that with regard to the fact that the averments are made in the complaint under section 200 of the 1973 Code, that respondent Nos. 2 to 6 were responsible for the affairs of the assessee that could be considered in the trial. Before launching of the prosecution, a notice was issued which was acknowledged while giving reply that with reference to the facts and with regard to the launching of prosecution when notice was issued under section 276B read with section 278B of the Act that notices were given to the assessee and its principal officers and had received notices from the complainant and also categorically mentioned that notice was acknowledged with regard to the proposal to launching of prosecution against the principal officers of the assessee for delaying remittance of tax deducted at source and in the reply also, they had admitted reasons for delay in remittance of the tax deducted at source. When such material was available before this court and when specific averment was made in the complaint itself that respondent Nos. 2 to 6 and others were in the helm of affairs of the assessee and that they were the directors and principal officers and notices were also given and the very contention that no notice was served and they were not in charge of the affairs of the assessee, the trial court had committed an error in making an observation that no notice was served as contemplated under section 2(35) of the 1961 Act and also that they had not been in charge of the assessee was nothing but perversity. The order discharging the accused respondent Nos. 2 to 6 suffered from legal infirmity. The court could exercise its revisional jurisdiction when the order suffered from illegality and incorrectness. When specific allegation was made in the complaint itself for making an averment and even the same has been extracted by the trial court in the order in the beginning itself with regard to the specific averments made in the complaint, defence could not be raised at the time of considering the discharge application under section 245(1) of the Code. Only the court had to consider the material available on record and the same was a matter of trial. The Special Court for Economic Offences, had committed an error in discharging accused respondent No. 2. Hence, its order was set aside.
ITD v. Vishweshwara Rao Chava. (2025) 476 ITR 599/304 Taxman 66 (Karn)(HC)
S. 276B : Offences and prosecutions-Failure to pay to the credit tax deducted at source-Summons to directors treating them as principal officers of assessee-Application for discharge-Trial court discharging accused directors on grounds that no notices issued and no documents produced to treat them as principal officers of assessee-Accused directors accepting delay in remittance of tax deducted in reply to notices from complainant-Defence cannot be raised at time of considering discharge application Material available to be considered at time of trial-Court can exercise its revisional jurisdiction when order suffers from illegality and incorrectness-Order was set aside. [S. 2(35), 276BB 278B, Criminal Procedure Code, 1973, S. 200, 245 Art. 226]