TMI Blog2022 (3) TMI 1481X X X X Extracts X X X X X X X X Extracts X X X X ..... charge of the day-to-day affairs of accused No.1 Company and the same is missing in the notice. Only referring the proviso under Section 276 of the said Act in paragraph No.4 of Ex.P.2, asked respondent No.2 that he is also responsible for non-deduction and depositing of the TDS amount and also asked for only show cause notice why he cannot be treated as Principal Officer and no specific averment is made that he has been in charge of the affairs of accused No.1. When such averments are missing, the Trial Court has not committed any error in considering Ex.P.2 and making an observation that even it is not stated that accused No.2 had been in charge of the day-to-day affairs of accused No.1. The notice Ex.P.2 was also taken note of by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed No.2 is the Managing Director of accused No.1 and is responsible for the day-to-day business and conduct of accused No.1 vide notice dated 21.10.2018 issued under Section 2(35) of the Income Tax Act, 1961 ( the said Act for short). The same has been denied by accused No.2 contending that he is only a Director of accused No.1 and not the Managing Director. An application was filed before the Trial Court for discharge contending that he is not the Managing Director of accused No.1 and only Director and hence not falls under charging of Section 2(35)(b) of the Act, which requires a notice to treat him as the Principal Officer of accused No.1. The mandatory requirement is not complied with. Accused No.2 cannot be treated as Principal Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be tried as an accused along with accused No.1. The very approach of the Trial Court is erroneous. 5. Per contra, the learned counsel for the respondents would submit that nowhere in the said notice Ex.P.2, it is made clear that he is in charge of the affairs of the Company or in connection with the management or administration of the local authority. The Trial Court while considering the material on record, particularly in paragraph No.17 considering Ex.P.2, rightly comes to the conclusion that nothing has been stated that respondent No.2 has been in charge of the day-to-day affairs of accused No.1 and hence it does not require interference of the Court. 6. Having heard the learned counsel for the petitioner and the learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed No.1. The notice Ex.P.2 was also taken note of by the Trial Court and comes to the conclusion that he was only asked to show cause why prosecution should not be initiated against him for the offence punishable under Section 276B of the Act, but nothing contains with regard to the contents of Section 2(35) of the said Act. When such being the factual aspects of the case, I do not find any error committed by the Trial Court in discharging respondent No.2 in coming to the conclusion that nothing is found on record that he has been in charge of day-to-day affairs of accused No.1. Hence, I do not find any merit in the petition to invoke the revisional jurisdiction. 7. In view of the discussions made above, I pass the following: ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X
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