Decided on July 05,1976

STATE Respondents


Sudhamay Basu, J. - (1.)This is an application under Article 134 (1) (c) of the Constitution of India for a certificate of fitness for leave to appeal to the Supreme Court.
(2.)It appears that complaints were filed by the Income-tax Officer, A-Ward, against the directors of the Asiatic Oxygen and Acetylene Co. Ltd. and Asiatic Oxygen Co. Ltd. and one Mr. K. C. Gangwal designated as the Principal Officer, of the said companies for failure to deduct income-tax from the salary of the employees, for failure to submit return in time, for failure to take income-tax and super tax on dividends for certain period mentioned in various sections of the Income-tax Act. On receipt of complaints the learned Chief Presidency Magistrate, Calcutta, took cognizance but transferred the cases to some other learned Magistrates for disposal. The offences related to those under Sections 276-b, 276-D and 276-B of the Income-tax Act, 1961. Six petitions in revision were filed for quashing the proceedings by way of test cases. It was represented before the Court that hundreds of similar cases were pending before the Magistrate. The principal point urged in support of the rules issued in those six petitions was that cognizance having been taken in all these cases by the learned Chief Presidency Magistrate who transferred them the transferee Magistrates were not competent to issue process. Another point urged was that a company can have only one principal officer. Directors were not principal officers. As the Sanctioning Authority in those cases accorded sanctions against Mr. K. C. Gangwal as Principal Officer and against other Directors, the same was bad. By a judgment delivered by us on the 27th of January, 1976, the six petitions Cr. Rev. 271 to 276 of 1976 were disposed of. The rules except in Cr. Rev. 274 of 1975 were discharged. On consideration of the facts and circumstances we were unable to hold that the learned Magistrate had no jurisdiction or competence to issue process. We also held that it would be premature at that stage to quash the proceedings. In our view the point as to whether accused persons who are designated as Directors are Principal Officers or Agents could only be determined after witnesses were examined. The present application relates to the said judgment and order.
(3.)Although we are of the view that some of the points raised are of importance it appears that the order we passed cannot be said to be a final one. Mr. N. C. Banerjee, learned Advocate appearing in support of the petition concedes that the orders passed by the learned Magistrates which were dealt with by us in our judgment are interlocutory in nature but he argued that our refusal to invoke the inherent powers was, however, final and therefore, he was entitled to have a certificate. He relied in this connection on a judgment of the Supreme Court namely, Mohanlal Magan-lal Thakkar v. State of Gujarat. According to him, the aforesaid judgment of the Supreme Court makes a departure from the earlier cases. We are, however, unable to agree with Mr. Banerjee in this regard.

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