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2018 (3) TMI 1316 - HC - Income TaxSanction for prosecution issued u/s 279(1) - TDS not deposited in the government treasury within the prescribed statutory time - defaults were in respect of salary as well as non-salary TDS deductions - Refund paid towards TDS arrears - Held that:- Merely recorded what has been stated by the counsel for the revenue and not given our pronouncement or judgment in view of the contentions raised in the writ petition or on merits of the criminal complaint which is pending trial. These issues will have to be examined in accordance with law in the criminal proceedings. In case the petitioners are able to make out that cognizance was not justified and as per law they can challenge and question the summoning order by way of petition u/s 397 r.w.s. 401 of the Code of Criminal Procedure, 1973 (Code) or if permissible, by way of a petition under Section 482 of the Code. Non-payment of refunds. There is difficulty in examining this allegation. Petitioners have not impleaded the jurisdictional AO and Commissioner as respondents/parties to the writ petition. The Sanctioning Authority is the first respondent and Directorate of Income Tax, Ministry of Finance is the second respondent. The second respondent is not an authority and does not have any legal existence. As per details ascertained by the counsel for the Revenue refunds for the AY 2005-06 stands paid. There is, however, short of credit on TDS amounting to ₹ 8,85,418/- which is under verification on account of old records and non-availability of TDS challans. Petitioners claim that they are entitled to refund of ₹ 49 Lakhs for the AY 2005-06. This fact is disputed. With regard to the AY 2009-10, refund of ₹ 37,75,750/- was issued on 1st February, 2014. For the balance amount of ₹ 14,56,140/-, the matter is under verification and thereafter refund would be issued. Petitioner accepts that refund of ₹ 3.05 Crores for the Assessment Year 2010-11 was issued on 27th November, 2012. As per the chart produced by the petitioners, during the period 30th June, 2012 till 31st March, 2013, ₹ 85.11 Lakhs was deposited towards TDS, leaving an outstanding balance of more than ₹ 2.68 Crores payable as TDS. Entire refund was not paid towards TDS arrears. We clarify that we have not expressed any opinion relating to refund on merits and have only noticed the facts and contentions raised by the respective sides. This order would not prejudice the rights of the petitioners, or as deciding contentions and defenses that the petitioners may raise during the course of criminal prosecution or if they challenge the order passed by the ACMM taking cognizance and issuing summons. Petitioners states that they would be moving an application seeking exemption from personal appearance. If any such application is filed, the same would be considered as per law.
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