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2022 (3) TMI 1139 - HC - Income TaxProsecution against the Director u/s 276B - Principal officer of the Accused Company - Compliance u/s 2(35) - Punishable offence for non deduction of TDS - Trial Court discharged the Director (Accused no 2) - as accused No.2 is not the Managing Director of accused No.1 but he is only the Director of accused No.1 and hence, falls under the charge of Section 2(35)(b) of the Act, which requires a notice to treat him as the Principal Officer of accused No.1 and mandatory requirement is not complied; hence, accused No.2 cannot be treated as Principal Officer of accused No.1 - HELD THAT:- No doubt, in terms of Ex.P2 notice the averment is made that it is seen from the records that the respondent No.2 had deducted tax and not remitted the same to the Central Government account within the time and hence in paragraph 3 of Ex.P2 also stated with regard to the punishment provided and also asked to show cause for non-payment of the amount. First of all, the very contention of the respondent No.2 before the Trial Court is that he is not the Managing Director of accused No.1 and he is only a Director of accused No.1 and hence, as per Section 2(35) of the Act, which requires a notice to him as Principal Officer of accused No.1. The mandatory requirement is not complied with and the very contention is also that the notice given in terms of Ex.P2 is not in compliance of Section 2(35) - The Trial Court also taken note of the judgments referred supra while coming to such a conclusion and in paragraph 17 the Trial Court categorically held that Ex.P2 notice cannot be considered as the notice under Section 2(35). This Court also directed the petitioner counsel to place the said document to see whether the said notice is in compliance of Section 2(35) of the Act or not and on perusal of the said document dated 21.10.2018, we do not find any error committed by the Trial Court in coming to the conclusion that Ex.P2 is not in compliance with Section 2(35) and the very reasoning given by the Trial Court is not suffers from any perversity or illegality and the scope of the revision is if the order passed by the Trial Court is not in pursuance of the provisions and suffers from any illegality and correctness, then only the Court can invoke the revisional jurisdiction. The reasons assigned by the Trial Court, while coming to the conclusion that Ex.P2 is not in consonance with Section 2(35) of the Act, is not suffers from any illegality and correctness. Hence, I do not find any grounds to entertain the revision petition and set aside the order of the Trial Court.
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