R.Bhattacharyya, J. - (1.) - In the aforesaid criminal revision, twin question raises its head for decision passed, in connection with order No. 1 dated 24.3.90, by the learned Chief Metropolitan Magistrate for cognizance being taken on the basis of a batch of complaints of the Asstt. Commissioner in Case No. C/770/90.
(2.) Most of the facts are no longer in dispute. The accused persons, as partners, were hauled up for commission of an offence under section 276 B(ii) / 278B of the Income Tax Act, 1961. The non-payment of the tax deducted at source laid the seeds of initiation of the criminal proceedings despite the pecuniary obligations discharged by the partners beyond the statutory period.
(3.) The question arises in this way. Mr. Bhattacharyya appearing for the revisionists has canvassed that no penal action lies against the firm as it is not a body corporate nor a juristic person. He has tried to impress on me that the code is meticulously silent about the prosecution of a firm in a criminal trial. To buttress his claim, he has argued with much emphasis that section 276 of the Income Tax Act does not entertain any ambiguity. On the other hand, it could afford a clue that firm was kept out of the provisions of the aforesaid Section. The argument seems to be attractive at the first flush. But, if one walks through the bosom of section 276B of the Income Tax Act, it will petter all doubt that provision is very much alive for prosecution of a firm as it is well delineated in the provisions of the Income Tax Act. Section 2(31) of the Income Tax Act 1961 defines the firm as 'person'. Thus, there could not be any difficulty to attribute meaning to the word 'person'. He has taken me through the various provisions of the Income Tax Act, 1961 to found his claim, although Mr. Talukdar, the learned Advocate, appearing for the Union of India, is sought to have resisted the claim on the ground that the I.T. Act countenances the prosecution of a firm. It is true that a firm cannot suffer any imprisonment but where the question of payment of fine or any other punishment is concerned, the firm cannot be relieved of its obligations. A firm could be very well prosecuted for which mode of service has been prescribed by the code. It is also fallacious that a firm is immuned, if it fails to pay any tax as there are prescribed modes for dealing with the registered and unregistered firms under the Income Tax Act. It is true that a summon cannot be served or issued on the firm directly but through its proprietor or partners as the case may be. Our court, in Commissioner of South Dum Dum Municipality v. O. M. Khosla, AIR 1965 Calcutta 263 : 1965 Cri LJ 617 held "In view of the terms of section 69(3) Cr PC showing that summons on a company may be served on the Secretary or the local Manager or other Principal Officer, it may be held by analogy that the Secretary or the local manager or the Principal Officer of the company will represent the company in such a prosecution".;