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TMI Blog2022 (3) TMI 1481X X X X Extracts X X X X X X X X Extracts X X X X ..... ng respondent No.2 herein in C.C.No.90/2019. 3. The factual matrix of the case is that accused No.1 is a Company and the allegation is that it had not remitted the deducted TDS of the financial year 2016-17 within the stipulated period of time. It is also alleged that accused No.2 has been vicariously made liable for the offence committed by accused No.1. It is contended that in the complaint, it is averred that accused 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dated 09.10.2017, now the respondent cannot contend that the said notice is not in compliance with Section 2(35) of the said Act. The learned counsel would contend that the Trial Judge without looking into the contents of the documents, erroneously comes to the conclusion that the same is not in compliance of Section 2(35) of the said Act. Without the notice under Section 2(35)(2) of the said Act, accused No.2 cannot 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 administrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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