IN THE HIGHXOURT OF GRISSA

Case No.

OFFICE ^lOTES

SI. No. of Date of Order for Notes and action taken on order with
Order for compliance signature of Dealing Assistant and -Superintendent
compliance
Multiple Filing Slip http://10.184.240.222/swecourtishc/periphery/ohcperiphery/filing/ni.

ORISSA HIGH COURT

FILING ACKNOWLEDGEMENT SLIP
CNR ODHC010506992024
Filing No D- CRLMC/0020804/2024
Date and Time 11/07/2024-17:26:03
Case No
Registration Date and Time
Misc Case/IA 1820/2024
Petitioner Name SUBASH AGARWAL
Petitioner Advocate Name SASWAT KUMAR ACHARYA
Respondents Name UNION OF INDIA
Respondents Advocate
Amount
Police Station
FIR /O

Thursday 11th ofJuIy 2024 05:28:29 PM

 Case No.- D-CRLMC / 20804 / 2024

Objection
1. Court Fee Is Deficient.
2. Valuation Of Property Not Made
3. Authentication Fee Is Deficient.
4. Affidavit/verification Not Proper.
I.verification Not Proper.
II.Affidavit Not Proper.
III.Affidavit is Not in Proper Format As per High Court Rule Chapter-VI
5. Second Copy Of Petition Not Filed.
6. Receipt Showing Serv.copy To Ag/cg/it/ct/etc.not Filed.
I.Receipt Showing Serv.copy To etc. not Filed.
II.Receipt Showing Serv.copy To it not Filed.
III.Receipt Showing Serv.copy To ct not Filed.
IV.Receipt Showing Serv.copy To Ag not Filed.
V.Receipt Showing Serv.copy To cg not Filed.
VI.Receipt Showing Serv.copy To Vigilance not Filed.
VII.Receipt Showing Serv.copy To CBI not Filed.
VIII.Receipt Showing Serv.copy To E.D. not Filed.
7. Vakalatnama Not Properly Stamped,executed,accepted.
8. Cause Title Not In Order.
9. Provision Of Law Not Furnished On Top Of Cause Title.
10. Subject Code Not Furnished/incorrectly Mentioned
I.Subject Code Not Furnished .
II.Subject Code incorrectly Mentioned
11. Neat,legible Attested Annexures Not Filed.
12. Assesment Slip Not Filled-in Properly.
13. Application Contains More Than One Prayer.
14. Not Properly Indexed.
15. All Papers Not Properly Signed.
16. Petition/appeal Not In Time
I.Appeal Not In Time
II.Petition Not In Time
17. Reference Certificate Not Furnished.
18. Certified Copy Of Trial/appellate Court Order Not Filed
I.Certified Copy Of Trial Court Order Not Filed
II.Certified Copy Of appellate Court Order Not Filed
19. Undertaking For Non Filing Of Translated Copy Not Filed
20. Vernacular Certificate Not Furnished.
21. Statutory Deposit/awarded Amount Not Deposited.
I.Statutory awarded Amount Not Deposited.
II.Statutory Deposit Amount Not Deposited.
22. Requisites Not Filed.
23. Nomenclature Not Correctly Furnished .
24. Limitation Not In Time / Expired.
I.Limitation Not In Time.
II.Limitation Expired.
25. Names In Capital Letters/enrolment Numbers/mobile Phone Numbers
Of All The Signing Advocates Not Indicated
I.Names In Capital enrolment Numbers Of All The Signing Advocates Not
Indicated
II.Names In Capital Letters Of All The Signing Advocates Not Indicated
III.mobile Phone Numbers Of All The Signing Advocates Not Indicated
26. Petitions/appeals/applications Not In Superior Quality A4 Size
Paper/less Than 75 Gsm Paper
I.Petitions In less Than 75 Gsm Paper
II.Applications less Than 75 Gsm Paper
III.Petitions Not In Superior Quality A4 Size Paper.
IV.Appeals less Than 75 Gsm Paper
V.Applications Not In Superior Quality A4 Size Paper
VI.Appeals Not In Superior Quality A4 Size Paper
27. Petitions/appeals/application Not In Proper Font/not In Proper Font
Size
I.Appeals not In Proper Font Size
II.Petitions not In Proper Font Size
III.Application Not In Proper Font
IV.Petitions Not In Proper Font
V.Appeals Not In Proper Font
VI.Application not In Proper Font Size
28. Petitions/appeals/application Margin Not Proper/line Spacing Not
Proper
I.Petitions Margin Not Proper
II.Application line Spacing Not Proper
III.Application Margin Not Proper
 IV.Appeals line Spacing Not Proper
V.Petitions line Spacing Not Proper
VI.Appeals Margin Not Proper
29. Name Of The Filing Advocate Not In Capital Letters/enrolment Number
Not Indicated Wherever Signature Of Such Advocate Appearing In The
Petition/appeal/application
I.Name Of The Filing Advocate Not In Capital Letters In The appeal
II.Enrolment Number Not Indicated Wherever Signature Of Such Advocate
Appearing In The appeal
III.Enrolment Number Not Indicated Wherever Signature Of Such Advocate
Appearing In The Petition
IV.Name Of The Filing Advocate Not In Capital Letters In The application
V.Enrolment Number Not Indicated Wherever Signature Of Such Advocate
Appearing In The application
VI.Name Of The Filing Advocate Not In Capital Letters In The Petition
30. Other Defect (if Any)
I.Others if any
II.Petition not correctly addressed to Hon'ble Court

Objection to be complied
3.Authentication Fee Is Deficient.
6.V.Receipt Showing Serv.copy To cg not Filed.

Remarks: A.fee of Rs.1.10 be paid on Anx.4.

(Stamp reporting done by Priyadarshi Nayak) Date & Time : 2024-07-22 02:12:43pm

This is system generated.Signature is not required

Powered by TCPDF (www.tcpdf.org)

 STAMP REPORT
JURE OF DEFECT CASE NO.

1. COURT FEE DEFICIENT

2. VALUATION OF THE PROPERTY NOT GIVEN

3. AUTHENTICATION FEE IS DEFICIENT

4. AFFIDAVIT/VERIFICATION NOT PROPER

5. SECOND COPY OF THE PETITION NOT FILED

6. RECEIPT SHOWING SERVICE OF COPYTO AG / CG / IT/ CT ETC. NOT FILED

7. VAKALATNAMA :

(i) NOT PROPERLY STAMPED / EXECUTED /ACCEPTED

(ii) NAMES IN CAPITAL LETTERS / ENROLMENT NUMBERS / MOBILE PHONE NUMBERS OF ALL THE
SIGNING ADVOCATES NOT INDICATED

8. CAUSETITLE NOT IN ORDER

9. PROVISION OF LAW NOT INDICATED ON TOP OF CAUSETITLE

10. SUBJECT CODE NOT FURNISHED /INCORRECTLY MENTIONED
11. NEAT,LEGIBLE, ATTESTEDANNEXURES NOT FILED
12. ASSESSMENT SLIP NOT FILLED IN PROPERLY

13. NOT PROPERLY INDEXED

14. PETITIONS/APPEALS/APPLICATIONS:

(i) NOT IN SUPERIOR QUALITY A4 SIZE PAPER / LESS THAN 75 GSM PAPER
(ii) NOT IN PROPER FONT/ NOT IN PROPER FONT SIZE
(iii) MARGIN NOT PROPER / LINE SPACING NOT PROPER
Civ) NOMENCLATURE NOT CORRECTLY INDICATED
(v) ALLPAPERS NOT PROPERLY SIGNED
(vi) NAME OF THE FILING ADVOCATE NOT IN CAPITAL LETTERS / ENROLMENT NUMBER
NOT INDICATED WHEREVER SIGNATURE OF SUCH ADVOCATE APPEARING IN
THE PETITION /APPE/UJ APPLICATION

15. APPLICATION CONTAINS MORETHAN ONE PRAYER

16. LIMITATION PERIOD EXPIRED

17. REFERENCE CERTIFICATE NOT FURNISHED

18. CERTIFIED COPY OF TRIAL/APPELLATE COURT ORDER NOT FILED

19. UNDERTAKING FOR FILING OFTRANSLATED COPY NOT FILED
20. VERNACULAR CERTIFICATE NOT FURNISHED

21. STATUTORY DEPOSIT/AWARDED AMOUNT NOT DEPOSITED

22. OTHERDEFECT(IFANY)

DEFECTIVE/READY

SUBJECT—

SUB-CATEGORY— .

SINGLE JUDGE/DIVISION BENCH(Put >^mark)

(Full signature of Stamp Reporter)
0GP-PP-DTP-U1 (H. C.) 50-200000-06-03-2022
 m-i'"

Cl> -
RFA/RSA/FAO/SAO/LPA/SPiVCRP/Review pet/0. Ref/EXFA/EXSA/SM/APP Tr. P(c) WP
{c)/WA/SCLP/Co. Appl/Co. Pet/Co. Case/Co. App/Bkg, P/Mat. A/Mat Ref/RP (FAMCT)
Test Case / Intest. Case/L.A. Ref/ RGFA/ L.A.A./RCSA/RE Rev/MAC/MAC APP/EL Pet/
ELAPP/Arb, P/Arb. A/Arb. A/Insurance Ref/Cont. Cas(c)/Coutd. App (c)/ MFA(name of
the Act)/MSA/SP. JO(name of the Act) Cri.A/Cri. Rev/Ckl. M. 0/ BLAPI/Cal. MAPPI/WP
(crl) CUSREF STREV.
Case Type ^ No / Xo^ Date of Regn.-II 1^1
If 'State' is Party, Name of the peptt:(Pet/Res)[Put Mark]
UlA'tbYi 'ilr I
If Public Undertakings(Specify name);(Pet/Res)[Put Mark]

3. (a) Number of Category under which the matter fails:

0 1 .. i 0 0

If Others,Specify the subject

(b) WhichJ^pplicable? [Put Mark]
(Single Bench/Div. Bench/Three Judge Bench/Five Judge Bench)
Article of the Constitution/Act(Central/State) [Put Mark]'

5. Section/Sub-Section^voived /I-
6., Rules Involved ^unr-jR-lgl^
7. i Whether any other matter is pending in this Court on the same point of law:
' If so, give the number of matter:
' ^ r- ^
8. Whether any other matter is pending against the Impugned order/Judgement?
' if so give the number of matter r

9. Whether the matter is covered by any judgement of. the Supereme Court this Court or
■ any other High Court, if so give the details of the judgement
• J ' N\o ^ /-

10. Point of law involved in the mattqY ^

fvTcUW--^--g^ ffAjlX£CvA-p(jg^ -

Date <- M I f^/2.o^.\ Slgnatur^f the Advocate

 IN THE HIGH COURT OF ORISSA,CUTTACK

(CRIMINAL MISCELLANEOUS JURISDICTION)

CRLMC NO. OF 2024

CODE NO.092100

FC214387 IN THE MATTER OF:

SUBASH AGARWAL ...PETITIONER

VERSUS

UNION OF INDIA ...OFF. PARTIES

INDEX

S.NO. PARTICULARS PAGE NO.

1. Synopsis
B'C
2. List of Dates
0
3. A petition under Article 528 of the
Bharatiya Nagarik Suraksha Sanhita, |-|6
2023.

4. ANNEXURE-1

Copy of the show cause notice dated IT-

28.06.2016.

5. ANNEXURE-2
 Copy of the order of sanction dated
02.02.2017.

6. ANNEXURE- 3

Copy of the Complaint.

7. ANNEXURE- 4

Copy of the Order of

PS-
Cognizance and summons dated
23.06.2018 in 2CC Case No. 165/2017.

8. ANNEXURE- 5

Copy of the Instruction/Circular in

F.No. 285/90/2008-IT(]nv-I)/05 dt. ;
24.04.2008.

9. VAKALATNAMA --

BY THE PETITIONER THROUGH

CUTTACK

DATE:09.07,2024

ADVOCATE

SASWAT KUMAR ACHARYA

ENROLMENT NO. D-2742/2009

 -fl'
IN THE HIGH COURT OF ORISSA,CUTTACK

(CRIMINAL MISCELLANEOUS JURISDICTION)

CRLMC NO. OF 2024

CODE NO.092100

IN THE MATTER OF:

SUBASH AGARWAL ...PETITIONER

VERSUS

UNION OF INDIA ...OFF. PARTIES

APPENDIX-I

SYNOPSIS

That this petition is filed invoking this Hon'ble Court's

inherent powers u/s. 528 of the Bharatiya Nagarik Suraksha
Sanliita, 2023 ("BNSS") seeking quasliment of the present
complaint case has been filed by the Union ofIndia tlirough the
Assistant Commissioner of Income Tax (TDS), Bhubaneswar
under Section 276B of the Income Tax Act, 1961 ("IT Act").
The Petitioner also seeks quashing of order of the cognizance
and issuance of the process in the 2(C) C.C. Case No. 165 of
2017 before the Addl. ChiefJudicial Magistrate, Special Court,
Cuttack("2CC Case").
 -S'
On 28.06.2016 OP No. 1 issued a show cause notice

("SCN") u/s. 276B of the IT Act for initiating prosecution

proceedings u/s. 276B of tlie IT Act, wherein it has been
alleged that the ACPL has delayed in depositing a TDS amount
to the tune of Rs. 22,72,854/- to the Central Government for
period ranging from 7 to 18 months for the FY 2012-13.
Thereafter,tlie OP No. I without application ofhis mind passed
an order u/s. 279(1) dated 02.02.2017 sanctioning to initiate
prosecution u/s. 276B of IT Act pertaining to FY 2012-13
against the concerned Petitioner.

Later, without giving any opportunity under per Section

278AA of the IT Act, the OP No. I proceeded to file tlie 2CC
Case on 17.05.2017 before the Court of the Ld. Additional

Chief Judicial Magistrate (Special Court) Cuttack, ("Ld.

ACJM")and the Ld. ACJM has taken Cognizance and issued
of process vide summons dated 23.06.2018 which is arbitrary,
illegal and suffers from patent illegality.

The Petitioner desperately accumulated the funds fi^om

all available resources providing top priority towards the
payment of TDS along with the interest and paid it belatedly
along with an Interest of Rs. 3,82,752/- and paid the total
amount including principal and interest to the tune of Rs.
26,55,606/-by 30.09.2013.

The CBDT on 24.04.2008 has issued a Circular wherein

it is provided that prosecution would be launched if the TDS is

not deposited within 12 months and the amount of TDS is Rs.
25,000/- or more. In the instant case, the delay is from 1 to 11
months, which is within the 12 months period specified in the
Circular.

Further, as per Finance Department Circular No. 1335

dated 28.5.1990, it is clearly provided that prosecution should
not be proposed if the amount in default has been deposited in
the meantime before issuance of tlie show cause notice u/s.

276B of the IT Act.

That therefore, on such grounds, the Petitioner is

knocking at the haloed doors of this Hon'ble Court seeking
redressal against the much apparent travesty of justice meted
out to tlie Petitioner. It is also pertinent to note that as against
the impugned order of Cognizance and issuance of process,the
Petitioner has no other alternative remedy and thus, in order to
challenge such arbitrary and unjustified actions of the 0pp.
Parties, the Petitioner is filing the instant petition u/s. 528 of
BNSS for appropriate relief(s). Hence the present petition.

BY THE PETITIONER THROUGH

CUTTACK

DATE:09.07.2024 ADVOCATE
 -0-
APPENDIX-II

LIST OF DATES AND EVENTS

30.09.2013 The IDS along with the interest Rs. 3,82,752/- to the
tune of Rs. 26,55,606/- (Principal + Interest) by was
paid by the Company.

28.06.2016 A show cause notice u/s. 276B of the Income Tax Act
("IT Act") by the OP No. 1 for initiating prosecution
proceedings u/s. 276B of the IT Act.

02.02.2017 OP No. 1 passed an order u/s. 279(1)dated sanctioning

to initiate prosecution u/s. 276B of IT Act pertaining
to FY 2012-13.

17.05.2017 OP No. 1 filed the 2CC Case on before the Court of

the Ld. Additional Chief Judicial Magistrate (Special
Court) Cuttack,("Ld. ACJM").

23.06.2018 Ld. ACJM has taken Cognizance and issued of process

summons.

09.07.2024 Hence, the present application.

BY THE PETITIONER THROUGH

CUTTACK

DATE;09.07,2024 ADVOCATE
 i
RUPEES ONE RUPEE

IN THE HIGH COURT ORlSSKy^^mTACK

(CRIMINAL MISCELLANEOUS JURISDICTION)

CRLMC NO. OF 2024

CODE NO. 092100

IN THE MATTER OF: A petition under Article 528 of the

Bharatiya Nagarik Suraksha
Sanhita, 2023;
AND

IN THE MATTER OF: An application seeking quashing

of the complaint filed u/s. 276B of
the Income Tax Act 1961 and the

rules framed thereunder, in

2(C)CC Case No. 165 of 2017
B.O
pending before the Court of the
Ld. Additional Chief Judicial

Magistrate (Special Court),

Cuttack as well as tlie order of

cognizance and issue of process

vide summons dated 23.06.2018

as the same suffers from patent

illegalities and is without
jurisdiction.

AND

3UBHAM AGRAWAL
Advocate
Enroll.No-0-1094/2021 PfiAOIPTA KUMAR MOHANT)
Uob.:9583756789 Notary, Cuttack Town
Regd.No-ON-04/1995
 JUSIiCg^

JUI
IN THE MATTER OF: SUBASH AGAK aged dbom
58 years, S/o. Mohari'lSl
residing atN2-88/89, IRC Village,
Nayapalli, Bhubaneswar, Dist.
Klaorda, Odisha- 751015.

...PETITIONER

VERSUS

UNION OF INDIA, represented

by the Assistant Commissioner of
Income Tax (IDS), Bhubaneswar,
at Aayakar Bhawan, Rajaswa
Vihar, Bhubaneswar, Odisha -
751007.

...OFF.PARTY

(The matter out ofwhich this case arises was never before
this Hon 'hie Court in its presentform or any otherform,
whatsoever, at the instance ofthe present Petitioner)

To,
The Hon'ble Chief Justice, and
His Lordship's Companion Justices of this Hon'ble Court
The Humble petition of the Petitioners above named -

MOST RESPECTFULLY SHOWETH:

1. That this petition is filed invoking tliis Hon'ble Court's

inlierent powers u/s. 528 of the Bharatiya Nagarik

PfiADlPTA KUIMAR MOHANT>

Notary, Cuttack Town
Regd.Mo-OM-04/i995
 M
SurakshaSanhita,2023("BNSS")seeking^i^imentof^
the present complaint case has been filed^h>^tSjj0tIkhi
of India through the Assistant Commissioner of Income
Tax (TDS), Bhubaneswar under Section 276B of the
Income Tax Act, 1961 ("IT Act"). The Petitioner also
seeks quashing of order of the cognizance and issuance
of the process in the 2(C) C.C. Case No. 165 of 2017
before the Addl. Chief Judicial Magistrate, Special
Court, Cuttack("2CC Case").

2, The present petitioner is the accused in 2CC Case and is

citizen of India and the cause of action for filing this
petition has arisen within the territorial jurisdiction of
this Hon'ble Court.

3, The Petitioner was tlie erstwhile Director of Anil

Contractors Pvt. Ltd.("ACPL") which was engaged in

the business of Infrastructure, Construction and other
allied works, ACPL makes payment to several other
incomes taxes assesses by making deduction of tax at
sources("TDS")under the relevant provision ofthe Act.
For the said purpose ACPL has been assigned a Tax
Deduction and Collection Account Number ("TAN
No.") i.e. BBNA01497G for tlie purpose of deduction
and filing of TDS returns.
j

4, On 28.06.2016, a show cause notice ("SCN")u/s. 276B

of the IT Act was issued to the Petitioner by the OP No.

PRADIPTA KUMAR M0HAN7>

Notary, Cuttack Town
Regd.Nc-^'*:
 Jill '^r

1 for initiating prosecution procee^ig^^^S;^

IT Act, wherein it has been alleged that"'AC^ has
delayed in depositing a TDS amount to the tune of Rs.
22,72,854/- to the Central Government for period
ranging from 7 to 18 months for the FY 2012-13.
Further, in the said show cause notice OP No. 1 have
asked the petitioner to appear before him on 12.07.2016
for hearing. Copy of the show cause notice dated
28.06.2016 is annexed herewith as ANNEXURE -1.

5. Thereafter, tlie OP No. 1 without application of his mind

passed an order u/s. 279(1)dated 02.02.2017 sanctioning
to initiate prosecution u/s. 276B of IT Act pertaining to
FY 2012-13 against the concerned Petitioner. Copy of
the order of sanction dated 02.02.2017 issued by OP No.
1 is annexed herewith as ANNEXURE -2.

6. Tliereafter, without giving any opportunity under per

Section 278AA of the IT Act,the OP No. 1 proceeded to
file the 2CC Case on 17.05.2017 before the Court of the

Ld. Additional Chief Judicial Magistrate(Special Court)

Cuttack,("Ld. ACJM") and the Ld. ACJM has taken
Cognizance and issued of process vide summons dated
23.06.2018 which is arbitrary, illegal and suffers from
patent illegality. Copy of the Complaint is annexed
herewith as ANNEXURE- 3.

PRADIPTA KUMAR MOHANTT

Notary, Cuttack Town
Regri - :■ 1.995
7. Thereafter the Ld. ACJM has failed to relJpT^h^^p^^
satisfaction as to how the role of the Petitioner is

responsible in fixing the vicarious liability. It is a settled

principle oflaw that the recording of satisfaction is a sine
qua non for taking cognizance. The Ld. ACJM witliout
applying his judicial mind has taken Cognizance and
issued a summons dated 23.06.2018 in 2CC Case No.

165/2017 which is illegal and liable to be quashed.

I 'Copy ofthe Order ofCognizance and summons
dated 23.06.2018 in 2CC Case No. 165/2017 is annexed

herewith as ANNEXURE- 4.

8. It is further submitted here that a bare reading of the

complaint reveals that the complainant in his complaint
had failed to demonstrate as how the Petitioner is

responsible for the day to day conduct of the business of

ACPL and how he can be made vicariously liable for the
offences u/s 276B of the IT Act. Therefore, in absence
of the specific allegation and on a mere bald averment
cannot saddle the criminal liability to face the rigours of
criminal trial. Therefore, the complaint itself is not
maintainable and liable to be quashed.

9. It is flirther submitted that ACPL was in a deplorable

financial situation, particularly when the bank declined
to enhance the credit limit. Despite that, the Petitioner
desperately accumulated tlie funds from all available
resources providing top priority towards the payment of

PRADIPTA KUMAR MOHANT>

Notary, Cuttack Town
Regcl M--
 -9:

TDS along with the interest and paid itq5^ .2013. It,

must be noted that such payment was mafe mi/iiiTpSor^^^^

I

to the issuance of the SCN by the Department, which

proves.the bonafide efforts to comply with the statutory
mandates.

Being aggrieved by the complaint and the order

of cognizance as well as the issue of process to him by
the Ld. ACJM in 2 (C) C.C. Case No. 165/2017, the
Petitioner invokes the inherent powers of this Hon'ble
Court u/s. 528 of BNSS seeking to quash the impugned
order of cognizance as well as further proceedings,
amongst other, on the following -

GROUNDS

A. For that in the complaint petition, it has been stated

that there is no justifiable reasons for late deposit of
TDS amount, without any application of mind as to
why the sanction for prosecution has been granted by
the OP No. 1 u/s. 279(1) of the IT Act in a mere
mechanical manner sans any deliberations, without
any due consideration and application of mind to the
facts of the case. It is a settled principle of law
enunciated by several courts tliat in a criminal
prosecution, where the sanction has been accorded
without due application of mind,then the prosecution
proceedings are not sustainable.

I
PRADIPTA KUMAR MOHANTV
Notat7, Cuttack Town
Read Nr '^='\'-r)4/i995
 ni
B. For that the delay on the part ofthe ACPL was
IJ r- — ^ ,
wilful nor deliberate and was in fact due tojsituations'^^^^
beyond the control of the Petitioner since the ACPL
was facing grave financial difficulties. Moreover,the
Petitioner has tried its level best in preserving the
interests of the Revenue by making payments for the
interest amounts. It is not a case where the Petitioner

and ACPL has committed a grave violation of the

statute. Accordingly, the facts & circumstances are
such that there were reasonable causes due to which

the defaults have been committed, and thus, qualifies

for reasonable cause as per Section 278AA of tlie IT
Act, and tlie Petitioner deserved to be exonerated

from prosecution u/s. 276B of the IT Act.

C. For that due to situations which were beyond the

control of the Petitioner and ACPL, as explained
earlier, there was some delay in depositing tlie TDS
amounts. However, despite such difficulties, the
Petitioner desperately accumulated tlie funds from all
available resources towards the payment of TDS
along with the interest and paid it belatedly along
with an Interest of Rs. 3,82,752/- and paid the total
amount including principal and interest to the tune of
Rs. 26,55,606/- by 30.09.2013. Moreover, in
obedience to the mandate of Section 201(1A) of IT
Act, the ACPL has also deposited the interest for tlie
late payments, which safeguards & preserves the loss

h
PRADIPTA KUMAR MOHANTV
Notary^ Cuttack Town
M- .'.,'19<55
 '2'
that may have been caused to the Revenue due to such
delay. It must be noted tliat such payment was made
much prior to the issuance of the SCN by the
Department, which proves tlie bonafide efforts to
comply with tlie statutory mandates. For reference,
the following table demonstrates the payments made
by the ACPL -

TDS Interest Last date of SCN Date

Amount Amount payment of TDS +
(Rs.) (Rs.) :^ Interest
(Rs.)
22,72,854 3,82,752 30.09.2013 28.06.2016

D. For that since the ACPL has made payments of the

IDS amounts with tlae penal interest as specified
under the statute, and the said amounts have been
duly accepted by the Department without any demur,
the offence u/s. 276B of the IT Act does not remain

in existence any furtlier as the Petitioner has made

payment of the IDS as required under tlie provisions
of Chapter XVIIB of the IT Act.

E. For that it is extremely pertinent to note that there are

no outstanding TDS amounts or interest amount
outstanding against tlie Petitioner or ACPL for the
relevant financial year. It is submitted that whatever
are the TDS amounts along with interest portions

PRADIPTA KUMAR MOHAND

Notary, Cuttack Town
 -C|,

have been deposited long back much prior to the

issuance of the show cause notice which can also be

verified from the Department's database. This

fortifies and establishes the bona fides of tlie

Petitioner. Furtlier, no TDS demand corresponding to

the present financial year remains outstanding against
tlie Petitioner or ACPL.

F. For that the CBDT on 24.04.2008 has issued a

Circular wherein it is provided that prosecution

would be launched if the TDS is not deposited within
12 months and the amount of TDS is Rs. 25,000/- or
more. In the instant case, the delay is from 1 to 11
months, which is within the 12 montlis period
specified in the Circular. Copy of tlie
Instruction/Circular in F.No. 285/90/2008-lT(lnv-
l)/05 dt. 24.04.2008 issued by the CBDT is amiexed
herewith as ANNEXURE - 5.

G. ForthatasperFinanceDepartmentCircularNo. 1335
dated 28.5.1990, it is clearly provided that
prosecution should not be proposed if the amount in
default has been deposited in the meantime before
issuance of the show cause notice u/s. 276B of the IT

Act. The relevant extract is as follows -

"Theprosecution under Section 276B should

not normally be proposed when the amount
involved and/or period of default is not

(H
P/MD/PM KUMAf? MOHAWTV
Regd.No-ON-C4/i995
 -\0
\

substantial and the amount in default has

also been deposited in the meantime to the
credit of the Government. No such
consideration will, ofcourse, apply to levy of
interest u/s. 20}(lA)."

Neither the OP No. 1 has not considered tliis before

initiating prosecution, nor the OP No. 1 at the time of

filing ofthe 2CC Case, and therefore it deserves to be
set aside.

H. For that the IT Act has provided immunity u/s.

278AA to protect tliose who have reasonable cause
for failure to pay. The extracts of Section 278AA are
reproduced for quick reference as under -

"Section 278-AA -

Notwithstanding anything contained in the

provisions ofsection 276A, section 276AB or
section 276B ofthe ITAct, no person shall be
punishable for any failure referred to in the
said provisions if he proves that there was
reasonable cause for such failure

Hence, there are sufficient precautions in the IT Act

to prevent misuse of Section 276B but the 0pp.
Parties have failed to appreciate the same and
proceeded mechanically to pass the sanction order
and subsequently the complaint. Tlie provisions of
Section 278AA is not discussed by the OP No. 1
before launching prosecution. This is contrary to the

PfiADlPTA KUMAR MOHAWTy

Notary, Cuttack Town
Regd.No-Or\l-0'!/a995
 11'/^
m im
"Standard Operating Procedure for Prose
cases ofITDS/TCS Default" laid down by the
wriq/
which states at Para 3.7 as follows -

5.7. The CIT(ITDS) is the competent authority

to accord sanction u/s 279(1). He shall:

a. Ifhe is ofthe opinion that; the case is primafacie

fit for prosecution, then, issue show cause
notice(s) to all proposed accused(s) u/s
276B/276BB r.w.5. 278B ofthe LT Act as to why
sanction for launching ofprosecution should not
be accorded. The show cause notice can be
generatedfrom the online module on TRACES, as
and when thefacility is made available.

b. He shall after hearing the assessee and after

proper application of mind clearly enunciate that
while processing the cases for prosecution u/s
276B/276BB r.w.s. 278B. a fair and judicious
view has been taken in view of the provisions of
Section 278AA before filins the complaintfs). This
should set reflected in both the sanction orders
passed by the Commissioners/Directors under
Section 279(1) and the complaints filed with the
competent Court:"

In view of such instructions from CBDT, it is

manifest that the sanction for prosecution u/s. 279(1)
ofthe Income Tax Act has been made in a mechanical

manner and hence; not maintainable. It is humbly

submitted that a perusal of the complaint would also
show tliat the provisions of Section 278AA have not

PSADIPTA KUMAR MOHANTV

Notary, Cuttack Town
Regd.No-ON-04/1995
 '19.'
at all been dealt with. Although the aforesaid CBDT
instructions require recording of reasons in the
complaint, however, in the present case, such
reasoning is conspicuously absentfrom the complaint
itself.

L For that tlie Petitioner, in his personal capacity, has

never committed any violation or wrong in any
manner whatsoever to be arrayed as an accused in the
Complaint.

J. For that a perusal of the Complaint would also reveal

that the same is not even supported by an affidavit of
the Complainant and tlierefore, taking cognizance of
the Complaint which is not supported by the affidavit
of tiie complainant is liable to be quashed.

K. For that u/s. 528 ofBNSS,this Hon'ble Court has the

inherent powers as are necessary to do the right and
to undo a wrong in the course of administration of
justice. Authority of the court exists for advancement
ofjustice. Judicial process should not be allowed to
become an instrument of oppression or needless
harassment. It would be an abuse of process of the
court to allow the proceedings to continue which
would result in injustice and prevent promotion of
justice as the Impugned Case is clearly bereft of any
penal offense committed by Petitioner as can be seen
from the facts stated above. (\

h
P^ADIPTA KUMAR MOHANTY
Notary, Cuttack Town
^eqd ^0-0^-0-1/1995
 L. For that it is submitted ^hat the continuation of tlie
abovementioned case/complaint under the facts and
circumstances would be an abuse ofthe process ofthe
Court and would hamper the reputation of the
Petitioner. It may kindly be appreciated that the
Complainant being a tax authority is having vast
powers and it is being misused as an abuse of the
process for meeting revenue targets causing undue
harassment and suffering and also hampers the
reputation of tlie present Petitioner.

10. That therefore, on such grounds, the Petitioner is

knocking at the haloed doors of tliis Hon'ble Court
seeking redressal against the much apparent travesty of
justice meted out to the Petitioner. It is also pertinent to
note tliat as against tlie impugned order of Cognizance
and issuance of process, the Petitioner has no otlier
alternative remedy and thus, in order to challenge such
arbitrary and unjustified actions of the 0pp. Parties, the
Petitioner is filing the instant petition u/s. 528 of BNSS
for appropriate relief(s).

PRAYER

In view of the aforesaid facts and circumstances, it is most

respectfully prayed tliat this Hon'ble Court may kindly be
pleased to -

PflADlPTA KUMAR MOHANTY

Notary, Cuttack Town
Regd.No-ON-04/1995
\

lumm
A. Admit the Criminal Misc. Case, call for" the^records

the Court below, & after hearing ,the parties,~quash tlie

criminal proceedings against the Petitioner in the
complaint in 2(C) C. C. Case No. 165 of 2017 pending
before the Court of the Ld. Additional Chief Judicial

Magistrate (Special Court), Cuttack;

B. Pass any such other order(s)/direction(s)/rule(s) in favour

of tlie Petitioner as would be deemed fit and proper in the
eye of law.

And for this act of kindness, the Petitioner shall as in duty

bound ever pray.

BY THE PETITIONER THROUGH

CUTTACK

DATE: 09.07.2024
ADVOCATE

DRAWN BY-

SASWAT KUMAR ACHARYA

ENROLMENT NO. D-2742/2009

PRADIPTA KUMAR MOKANTT'

Notary, Cuttack Town
Read 01/1995
 IN THE HIGH COURT OF ORISSA,CU 1
OfS-''
(CRIMINAL MISCELLANEOUS CASE)

CRLMC NO. OF 2024

IN THE MATTER OF:

SUBASH AGARWAL ...PETITIONER

VERSUS

UNION OF INDIA&ANR. ...OFF. PARTIES

AFFIDAVIT

1. I, Subash Agarwal, S/o. Mohanlal Agarwal, aged about 58

years, being the Erstwhile Director of Anil Contractors
Pvt. Ltd., residing at N2-88/89, IRC Village, Nayapalli,
Bhubaneswar, Dist.- Khordha, Odisha- 751015.

2. Father's Name: Mohanlal Agarwal.

3. Number of proceeding pending in the High Court or would

be instituted (Caveat): NO.

4. Statement of facts; As per averments in the petition.

5. The facts stated are true to the best of my knowledge and

belief of the deponent.

P^AOIPTA KUMAR MOHANT>

Notary, Cuttack town
Regcl.No-ON-04/1995
 'f

CERTIFICATE J(JL Wi
I, Subash Agarwal, S/o. Mohanlal Agarwal
58 years, being the Erstwhile Director of Anil Contractors'
Of#"'
Pvt. Ltd., residing at N2-88/89, IRC Village, Nayapalli,
Bhubaneswar, Dist.- Khordha, Odisha- 751015, being the
deponent/petitioner above named, do hereby solemnly
affirm that the facts slated in paragraphs-1 to are true to
my own knowledge and are true to the best of my
information which I obtained from the personal sources.

1, believe the information to be true for the following

reasons: Basing upon official records and information.
Solemnly declare at the above said this day of

,inB«n*n inoia
, 2024.

IDENTIFIEDBY

ft 'RTft^O
CATE DEPONENT

wxX'
emnly affirm before me by
CO s. cS
0 is Identified before me by
O whom 1 personally know.
j ^
This the day of ,2024.
PRADIPTA KUMAR MOHANTl
Notary, Cuttack Town
Regd.No-ON-04/1995
NOTARY PUBLIC: CUTTACK

ADVOCATE
 -17-
awnexure-^

™ ^ Goviemmentof Indf«
Indrn RPAD

Dated. Bhuban^swar the 28"^ June. 20:16 i

T^ /.-nr.' J» ^

The Managing Director. '.'''j\

Anil Contractors Pvt. Ltd., v.'\
W-1/93. 1.R.C. Village. Nayapalh.l
Bhubaneswar-751 015 j '
! ' ■
' tan BBNA01497G

■ "MatleTRegtX"''''"^ Prasecufion under section 276B of the I T Act. 195-

■hat Pet3y,s7ha?hrelr^1rdep«n^^^^^^^^ r 'I '?
s«io„ 20, Of the ,.T, AC. ,00, ■
« isA^par
found
Chapter XVtIB of the I.T. Ac. fs required .otay'hrTo? rnou " ®
credit of the Central Government." If any persL defa i.
with the
prescribed time limit to the
She, he tiacte to prosecution u,s. 27aB of .he , T Ac, The';™s;:^':rat:llrs:c°:ar9t„'
source b, him as required by 6r unde' the Pro^vTs'jo^s'of cS """ at

arrd show°care as'io'why "osecrn i/s'TyOBC the ft II,"' " a.m.

aforesaid failureroefaulf Non-complianca with ,h,s lelfer win Z c7ZZ'7,l
no objechon to fhe proposal for launch,nj q, prosecullon Please lakTnnt nfTh'';
petition will be entertained and in case of non-comoliancp th^a /» adjournment
merits of the case In the event of the pe^on ^
teen either transferred or retired, then the above nay be fnSed to .committed being
him/ner, may oe torwaroeo to the unoersinneo Prncomtinn
comm,„eo .he Oelaol. .s the'reSjit o^y c^ "o ht ZT'The explanation obtained from
concemeawhowasoff,ci3;in9a.therelevan!penodofde(3.i. explanation from the person

could resuL^'enaT^n/Ccel^ w,i, be adversely viewed and

^'■-O V"*^^ Yours faithfully

( N Jeyasankarj
Commissioner of Income'tax (TDS),
Bhubanesv.'ar
teifDrsjtn! 17
mco\r,eTar.O!licPnfC—
. Mranjaf
rih-.iVv::"^.C ' •' True Copy Miiea uu
 "iUSIluir'

r Hgr
ANWEXUREf^j^
Msfjx— i _
GOVERNMEI^ OF; INDIA
OFFICE OF THE COMMlSSIOl'lER OF INCOME TAX(TDS^^
2"^ FLOOR^ AAYAKAR BHAWAN ANNEXE,BHUBANESW^^^^
I I
Order u/s. 279f1I of I.T; Act. 1961
Dated, Bhubaneswar the 2"® February, 2017

Sri Subash Agarwal, S/o Sri Mohan Lai Agarwal Director of *

Ltd.,Plot No. N2 88/89, IRC Village, Nayapalli, Bhubaneswar-751014, T'A^^.^6t4A01457G ^
(herein after referred as assessee deductor) had deducted tax at source of ari'anipL^b^Ss.'
22,72,854/- from the payments made from salary. Contract, u/s. 192 & 194C during the month
of May 2012 to April 2013 but did not deposit the TC^-^mount into the Centra! Government
account by the stipulated dates. As per Rule 30 of l.T. Rules, the tax deductor is required to
deposit the TDS amount by 7"^ of next month, iri this case, the TDS amount was deposited to
the Govemment account after a delay of between 7 to 18 months. The details of default In
payments of TDS have been mentioned in colurlin 4 of Forni F I.e. the proforma for launching
V^- prosecution. The copies of the tax deduction statements I.e. form >240 & 26Q, also
corroborates the fact of delay in deposit of the h"DS amount. The Board In its Action Plan
Target has emphasized that the prosecution is to be mandatorily launched in those
cases where the TDS amount has pot been deposited by the due date. In this case, the
TDS amount comes to Rs. 22,72,854/- and the delay in deposit Js between 7 to 18 months for
the year 2012-13. This case Is squarely covered in the guidelines of Board for launching
prosecution.
2. As per section 2768 of l.T. Act, 1961, "If a person fails to pay to the credit of the
Central Govemment the tax deducted at source as required by or under the provisions of
Chapter XVII-B, he shall be punishable with rigorous imprisonment for a term which shall not
be less than 3 months but which may extend to 7j years and with fine
3 After going through the proposal sent by Assessing Officer and the statement of
tax deduction i.e. 24Q & 26Q. 1 am satisfied that this is a fit case for launching prosecution u/s.
2738 of i.T. Act. Since the assessee deductor is a Company, Sri Subash Agarwal S/o; Mohan
La Agarwal. who is responsible for deducting tax at source deliberately defaulted in
depositing the TDS amount to the Government dccount by stipulated due dates for which they
v..
are liable to be prosecuted under the aforesaid section.
4_ Therefore, sanction is accorded ip terms of section 279(1) of l.T. Act to the
Income Tax Officer (TDS)-l, Bhubaneswar who holds jurisdiction over this case to launch
prosecution against the aforesaid persgn In the appropriate court of law.

{ A K Mohapatra )
Commissioner of Income Tax (TDS)
Bhubaneswar

True CopyMuepieo

ASwcate
 P
» y

3
jQsI
I
i (Q O r
iN^gj^ouRT OF The Addl.CriiEF Judicial Magistrate i

(Special Court)Cuttack ' 2e

''i 0. 5
- • • 2(C)qiC.No. l£iC_0f 2017
" JM '
Union^hdia rep^ese^t^4-^5^ Sri Niranjan Dash, aged abodt 54 years, son of Late
Bairagi Charan Dash,--'presently working as Income Tax Officer (TDS)-l,
Bhubaneswar in the Office of the Commissioner of Income Tax [TDSJ.Aayakar
Bhawan Annexe,Town/Munsifi- Bhubaneswaf,'Dist. Khurda.
.Complainant

VERSUS:

M/s Anil Contractors Pvt. Ltd., a PrivatejLimited Company having its Office At:
Plot No. N2 88/89,IRC Village, Naykpalli, P.S:Nayapalli, Town/Munisifi:
i
Bhubaneswar, Dist. Khurda, represented by its Managing Director Sri Subash
Agarwal of the above address who is also the Responsible Officer and
accountable as the Principal(Officer for the affairs of the company at the
relevant material time.

2. Sri Subash Agarwal, S/o- Sri Mohanlal Agarwal, Managing Director of M/s
Anil Contractors Pvt. Ltd., At: N-1/93, IRC Village, Nayapalli, P.SiNayapalli,
Tpwn/Munisifi: Bhubaneswar,'DisL Khurda
...Accused Persons

Complaint FiledBy The Above NameQ Complainant U/s.276-B of

L/
The Income Tax 1:961
I

The hjimble petition of the Complainant

above named;
Most Respectfully Sheweth:

1. That the Accused No.l is a Private Limited Company having its Office At: Plot
: I 'i
No. N2 88/89, IRC Village, Nayapalli, P.S: Nayapalli, Town/Munislfi:

Bhubaneswar, Dist Khurda.The Accused No.2 is the Managing Director of the

Accused No.l Company who is'also the|Responsible Officer and accountable

True Copy Mtteanju

A^eate
 '^o
»y rt .fe

as the Principal Officer for tlie affairs of the Company(hereina\t^.r^erred

as tax deductor- accused]. The said company is assessed to tax^upd|r^^e
provisions of the Income Tax Act, 1961. The deductorrManaging Director
being the Responsible Offlcer for and on behalf of the company authorized to
deduct tax at source and was accordinjgly issued TAN-BBNA01497Gand PAN-
AATPA3716A respectively. On the basis of the TAN, the deductor had
i
deducted tax at source of an aifiountiof Rs.22,72,854/- from jthe payments
i ' ' '
made to employees as salary and contacts U/s. 192 &nd 194C-of the I.T Act,
during the months fro^ May, 2012 to April,2013 for the'finandal year
^« 2012-^i^flevant to the Assessment Year 2013-14,but did not deposit the TDS
; -A amount:4nto the Central Government Account by the due dates. The TDS
40 ■
were, in fact, deposited in'the Central Government Account in

different dates, which has been reflected in the data generated from the
1
system with delay of 7 to 18 months, i
[
i

2. That it is respectfully submitted that the deductor was required to deposit the
! ! i
TDS amount as per Rule 30 of I.T. Rules, 1962 and in accordance with the

provisions of Chapter XVII-Blinto the Central Government Account by 7^'^ of

!
the next month and if the TIDS is made in the month of March, the same
I

should be deposited by Sl^t of May of the next financial year. Admittedly, in

this case the TDS amount was deposited to the Government Account with a

delay of 7 to 18 months. As would be seen from the computerized statement

of TDS in respect of24Q and 26Q for the 1", 2^'^-'^''^ and 4^ quarters there has

been late deposit of TDS amount to thelcentral Govt. Account after a delay of
j j
7 to 18 months.
 I •
-31- ^11 L-

f- s
That the deductor has defaulted in idepositing the TDS amount to the" -S

^ ra i2
Government Account in time. As per section ,276B of I.T. Act 1961,if a person ^E S
•
fails to pay to the credit of the Central Government theI TDS as required
;
by or ~8
under the provisions of Chapt|er XVII-B, he shall be punishable tyith rigorous
imprisonment for a term whjch shall 'not be less thah 3 months but which
may extend to 7 years and with fine.

4. That on the basis of data generated from the computerized statement, it is

ascertained that there has been delay iri deposit ofTDS amount for more than
j

one year. The computerized statement incorporates the date wise payments,
V.-
due date of payment, date of actual Idejlosit etc. The delay in deposit of TDS
to the account of the Centml Govefnment entails the provisions of
Sectiomi^75Bofl.T.Act, whichreadsiasunder*
' ';if;;a person fails to p^y to theicredif of the-Cqntral Government
^-'- r deducted ajt source as required by or under the
• provision of Chapter XVIl-B, then he shall be punished with
rigorous imprisonment for a term which shall not be less than 3
months but which extend to 7 years and with fine."
i
That since the deductor-Managing Dir^^or, being the Responsible Officer for
and on behalf of the Company authori::ed to deduct Tax at Source, did not
care for the relevant provisions of the I.T Act or Rule failed deliberately to
I 1
deposit the tax. The reasons for the latje deposits of the TDS amount to the
Central Govt. Account are not substantiated by any valid reasons.

That the complainant went through the records and got reasons to believe
that the tax deductor represented by Sri Subash Agarwal, who is the person
responsible for deduction and deposit of tax, deliberately defaulted in
 Hi

depositing the TDS amount tii) the Government Account ii le. ShavvtCause
letters generated from the system on 24.02.2015,were issh^^c^_^e /ccused'
company for filing of reply, by the then ITO (TDS), Bhubane'^Sf^J^;|j^
Bhubaneswar on 07.06.2015, 19.11.2j)'lS, which were'duly ser^d^^^
official address ofthe Accused company. Since there was no response by the
I

Accused Company,the present compla nant again issued another Show-Cause

I

dated 10.06.2016. In response to the kme, the accused company preferred

notto file any reply to the Show cause iLsued by the complainanl
That the records were put up before the Commissioner of Income Tax (TDS)
Bhubaneswar. After thorough analysis and due application of mind on the ,
^^^i^%ispf perusal of each the documents and scrutiny of the same, he felt that

2 Q ■"' Commissioner of Income tax (TDS)f"""!

Bhubaneswar issuedof TDS
Show amount.
Cause NotiThece
Nv-'V
on 2^.06;2016 to afford the accused cojnpany an opportunity before initiation
■of the prosecution proceeding U/s. 27^B ofthe I.T Act, for failure to pay TDS
amount to the credit of the Central Govt. Account. Since fitere was no
^ response to the ShowCa.use Letter damd 28.06.2016,the authorities of the
office of the CITCTDS), Bhubaneswar again Issued another show-cause letters
dated 18.08.2016, 30.08.2016, 29.09.2016 and finally 28.10.2016 to the
accused company for opportunity of hearing. But the Accused for the reasons
best known to him. preferred not to attend before the CITCTDS) for hearing of
the case. The attitude shown by the accused company for non-compliance of
the Show cause notices aforementioned issued by the CIT (TDS) is crystal
clear that there has been deliberate iale deposit of TDS amount made by the
 -93' — c

■gt
n >;

accused. On the basis of the mater! ds available on record, the CIT[TDS},

I 4 Q

Bhubaneswar passed an order U/s ;79[1) granting sanction for launching Jli
prosecution as per section 276BoftheJ,T. Act 1961. ' , ^ J
That the Commissioner of Income Tax [TDS}, Bhubaneswar therefore,
directed Sri Niranjan Dash.fjresently Working as Incme Tax Officer (TDS]-1,
Bhubaneswar who holds jurisdiction over this case to launch prosecution
before the appropriate court against the tax deductor in terms of section .
276B ofl.T. Act.

5. That the above action criminal m .na ure committed by the accused person

and interest which are

/y tax department iiin terms of

t'f the TDS o^^er and enjoyment thereof for his
I own investment While trying to
^ Aold^e payment of|tax, the,accused committed serious offence
»» • - i
»• I

afbfe^tioned that are puhishahle under the relevLt provisions of Indian

Penal Cdde stated above.

10. That the Economic Offences [inapplicability of Limitation] Act. 1974 is

w applicable to all proceedings under tfe Income tax Act. In accordance with
this Act, the limitation contemplated U/s 468 of Criminal Procedure Code
does not apply. Violation of the Incc me Tax Law has legal nexus for the
punishment under the Indian Penal C ode and is therefore attracted by this
Special Act Further since it is an economic offence, it is also a continuing
offence as defined U/s 472 Cr.P.C. and fresh period ofllimitation runs at every
moment of time during which the offence continues . in any view of the
matter this complaint is within time.
 -PM- 51
<Sz
11. That the provisions of S. 36^ of the code of the Criminal Procedure 1973 and
Probation of Offenders Act,1958 do not apply in terms ofSection 292.A ofthe Jtl
Income-tax Act 1961. j

Prayei^
I
It is therefore, prayed that this Hon'ble Court may be graciously
pleased to take cognizance ofthe o'ffelices which are cognizable in nature and
issue process to the accused person d rectihg them to face trial for the offence
punishable U/s. 276B ofthe Income tLx Act, 1961.

By The6 OUGH
. . . ..GinTACK .
^ ;; •,.:iJ[ATi:17.0S.2017

Pros SEL(LT)

DOCUMRNTsBRflppriff. j
0 statementshowing details oftax dedujted at source but deposited late,
ii) Show Cause letters dated 07.06.2015,19.11.2015 and 10.06.2016issued by the
ITO[TDS),Bhubaneswar.
ill] Show cause Letter dated 28.06.2016,18.08:2016, 30.08.2016. 29.09.2016 and
28.10.2016 issued by the CIT[IDS] Bhubaneswar.
iv) Sanction order U/s 279(1] of the incofne Tax Act 1961.
■ i I
IrSTQFWtTMRCgPC.

1. Complainant and other officials ofI.T Department

CUTTACK
By The Comeiainant Through
DatE:17.05.2017

PROSEC
 1

•'.I 'Ai rnr oaS'-ef* 0' If-? — •'^c""• /tV;n~T ''".n-lT

, '««..!!•'•» «\a-*r!c *''t ,.
:' " i ^or
""^ ■' - ' ~~ J
2£^,11 .2:iin:LV-r ' O '2 ''■■■■
'■ ..?■ C'

TN THE COURT OF THE ADDT.. rtfU-F.irmrrTAT MACrSTHAT^f

' I
(SPECIAL CQURTK CUTTArk-

iraCC No.l65/20l 7

Union of India represented by Sri Niranjan Dash., aged aboiu 54 yeans,

S/o.Late Sid Bairagi Charan Dash,
v.- i : presently working as Income Tax Officer (IDS)-1, <f 4 ^/. a Z

Bhubaneswar in the office of the Commissioner of

Income Tax (TDS), Aayakar Bhawan Annexe,
Town/MunsITBhubaneswar, Dist.IGiurda.

Coniphi-lnant
-Versus-

1 M/s. Anil Conlractors Pvt. Ltd,

a Private Limited Company having its Oflice
. At: Plot No.N2 88/89, IRV Village, Nayapalii,
PS.Nayapalli, Town/Munisifi. Bhubaneswar,
y

DisLKhurda, represented by its Managing Director

Sri Subash Agarwal of the above address
- V
who is also the Responsible Officer and accountable
as the Principal Officer for the affairs of the
company at the relevant material time.
2 Sri Subash Agaiwal,
S/o.Sri Mohanlal Agarwal,
. Managing Director of M/s. Anil Contractors Pvt. Ltd.,
At: N-1/93, IRC Village, Nayapalii, PS.Nayapalli,
Town/Munisifi: Bhubaneswar, Dist.Khurda
Accused Persons
Order Dtd.20.05.2017
PR along with other relevant papers are received. Registered.

Perased the case fe'cord, the cognizance of offence ii/s.276-B.l Income

True Copyaiiesieo

dvDcate
 e^/0- 2CjS^-ci
CoS'l-'i^ 'pi-5~€°-f
(g.u-|>ecJs Ffve-4-?''?^'^^' ' ^
.

Q.\'=\-13

Tax Act, 1961 IS taken. Issue summons against the accused person fixing
the case to 13.7.17 for appearance.

Dictated,
Sd/- Illegible
ACJM(SpI.), Cuftack
Computerized by;

Compared by ,n-

Rpad over and found to .liRTI^ED TO TKiJi CtiFI

V irue topv.asStarrps
.fwe)! ®rooerW
corrects pa-
assessec
|\TJC*.rk'-' ^ I "7 Shem.-^y riar^^ ^C'^
Mead
District Judge 3 C«i*rt, Cuti-toOi-
\uthonsed U/S 76 Act \ of
 •\
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SUMMON©TO AN ACCUSED PERSON- '"^ t f\
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[ No. 1, SCHEDULE V, ACT V. 189S]
{Section 68 bf tfre Code of Criminal Procedure]
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dvcwate
 ANMEXURE-^
"Tf i '

INSTRUCTIQMS / CIRCULARS

1. INSTRUCTIONS / CIRCULARS RELEVANT TO PROSECUTION:

F.No.285/90/2008-U(3nv.-I}/05
Government of India
Ministry of Finance
Department of Revenue
Central Board of Direct Taxes
North Block,New Delhi.
Dated:- 24"" April, 2008

All CCsIT(CCA), ail DGsIT (Inv,) and all CCsrr(Central).

Sirs/Madam,

Subject:- areamnninq of procedure for Mentification anri rimrpssma

Pfx^ecution under Direct Tax LawS'matter rea.-

n-rr. J is being launched in very few cases and that too only In

irate
create iriraMfL'nT®"''® Pfosecution
adequate deterrence against provisionsI amaredirected
tax evasion, effectivelyto implemented so as to'
inform the followina
nm'^i ibentmcation and processing of cases for launching, prosecution. This
ef^from'^Oiw^ with
hS^IrS been'launche^ ^^
Identification and processing of potenHal prosecution ras».r-
3.1 The following categories of offences shall be processed for launching prosecutlon;-
Offences u/s 276B! Failure to pay taxes deducted at source to the
credit of Central Government

dpnncirS'®®' Of fax debpcted is Rs.25,000 or mire) and the same is not

prosecution in addition to the recovery steps as f'of®
nr,^ ^ may beOf necessary
deduction,in shall be processed for
such cases.

. ^ junsdietion
having authority forTDS
over processing the prosecution
cases. The prosecution shall
underpreferably
this section
be shall be the
launched officer
within 60
ays of such detection. If any such default is detected during search / survey, the
TDS forthwith authorized officer shall inform the A.O having jurisdiction over
Pffenpeg 27gBB: Failure to pay taxes collected at source to the
credit of central government

Trus ^opy f-vutjaikiu

e9t@
TW

% JUL

(
offencelu/s^Tef
("0 Offences u/s77firf1)- Wilful attempt to evadfees

Within

Ov) 0^ncesjs/£2Z6C£21: Wilful attemptto evade payment of taxes

penalty or any o'thw s'L^a^oSg to'mire
SSSSplat: appella^ Ta^fyM^tI
officer/mo preferably within w'°daysof^f^r^^^^^ processed by assessing
Cv). Sagn£p_iLfs2Z6D: Failure to produce accounts and documents
The following cases shall be processed for filing prosecution complaint'-

W fans to comply with the directions issued u/s

of Rs 40 lakhs or mn'm i t the accounts audited and the accounts involve turnover
any). ^'271(l)(b) has been confirmed upto second appeal (if

the p'l'naltordefS^'fif a^yt °f

(vi) .Offences u/s 777A: Falsification of books of account or documents etc

processing the main case. i"formab'on from the ADIT/DDrr/A.O.

 -31-
r >#
(yii) Offences u/s 278; Abetmentoffalse return

each casrHowver'Iflhe^b^^ depending on the facts and circumstances of

i-t, the abetment IS for any offence against which prosecution has been

te\roc«'^® iLnrWn enumerated in para 3.1 above shall

sse=Tfi~~

"" SS?.S«; '™"''" W«»"•' tad.

Iwo anti-national/terrorist activity and cases beina

Ml Hlv enabled others in large-scale concealment of income; or

dfeposed'SflUngSpro"ZS""
Yours faithfully,
Sd/-
(D. K. Gupta)
Director (Inv.-I) & OSD(legal)
CBDT, North Block,
New Delhi.

True Liopy rvue^

 VAKALATNAMA

IN THE HIGH COURT OF ORISSSA,CUTprW

CRLMCNO. OF 2024

BETWEEN
TWO RUPEES
SUBASH AGARWAL ...PETE
VERSUS

UNION OF INDIA & ANR. ...OFF. PARTIES

Know all men by those presents that by this Vakalatnama -

I, Subash Agarwal, S/o. Mohanlal Agarwal, aged about 58 years, being the Erstwhile Director of
Anil Contractors Pvt. Ltd., residing at N2-88/89, IRC Village, Nayapalli, Bhubaneswar, Dist.-
Khordha, Odisha- 751015,being the Petitioner,do hereby appoint &retain the following
advocates-

ySASWAT K. ACHARYA [D-2742/2009,MOB: 7377777677]

[0-216/2014, MOB:7020095673]
PHOLGU
^BHUEETAGARWAL [O-144/2021, MOB:9090905141]
y^AGRUTISAHOO [0-167/2021, MOB: 7008939659]
v/^UBHAM AGRAWAL [0-1094/2021, MOB: 9583756789]
JAISH JOSHI [0^11/2021, MOB: 8847850017]
KRUTIBASH MOHAFATRA [0-1071/2021, MOB; 9671978615]

to appear for us in the above matter and to conduct and prosecute or defend the sa»
proceedings that may be taken in respect of any application connected with the sa
decree or any order passed therein including all application for return of documents dl
any money that may be payable to us in the said case and also in applications for review and in
appeals. I authorize our Advocates to admit any compromise lawfully entered in the said ca"-e.„^-^

DATED THE DAY OF , 2024.

Received from the Executant satisfied an accepted as I hold no brief for the other side.

Accepted as above Accepted as abdve Accepted as above

GATE ADVOCATE

Accepted as above Accepted as above Accepted as above

A'oVOCt^E ADVOCATE ADVOCATE

Accepted as above Accepted as above Accepted as above

AD ADVOCATE ADVOCATE

SiriNATIIRF OF F.XFrilTANT
 ,i
RUPEE}-

IN THE HIGH COURT OF ORISSA,CUTTACW/^r-:^^^

LA. NO. OF 2024

ARISING OUT OF

CRLMC NO. OF 2024

IN THE MATTER OF: A petition for interim orders

under Rule 27(a) of the Orissa
High Court Rules, 1948 (Part -
n, Chapter - VI).
AND

IN THE MATTER OF: SUBASH AGARWAL

...PETITIONER

-VERSUS-

UNION OF INDIA

...OPPOSITE PARTY

BEFORE,
The Hon'ble Chief Justice, and
His Lordship's Companion Justices of this Hon'ble Court

The Humble petition of tlie Petitioner abovenamed -

MOST RESPECTFULLY SHEWETH:

1. That this petition is filed invoking this Hon'ble Court's

inherent powers u/s. 528 of the Bharatiya Nagarik
SUBHAM AGRAWAL
Advocate PSADIPTA mum MOHANTY
Enroll.No-O-1094/2021 Notary, Cuttack Town
Mob.:d58d75d789 Regd.No-ON-04/i995
 X

\ i/UL h

Suraksha Sanhita, 2023 ("BNSS") seeking qu£ 7- ;r'c^'^

of the present complaint case has been filed~by the
Union of India through the Assistant Commissioner of
Income Tax (TDS),Bhubaneswar under Section 276B
ofthe Income Tax Act, 1961 ("IT Act"). The Petitioner
also seeks quashing of order of tlie cognizance and
issuance of the process in the 2(C) C.C. Case No. 165
of 2017 before the Addl. Chief Judicial Magistrate,
Special Court, Cuttack("2CC Case").

2. That the Petitioner has a strong prima facie case and has
every chance of succeeding in tliis CRLMC. The
submissions made in the CRLMC may be read and
treated as part of this application and have not been
repeated for tlie sake of brevity.

3. That the Petitioner apprehend tliat he may have to face

coercive actions if proceedings arising out of the
impugned order are pursued, and it will result in
causing a great deal of harassment and irreparable loss
to the Petitioner herein. The Petitioner is in no way
guilty of any offence as alleged, and the impugned
complaint has been foisted against the Petitioners in a
completely illegal manner.

4. That therefore, in such a case, where the allegations in

the impugned case are totally baseless, unless this
Hon'ble Court grants an interim protection of stay of

PRADIPTA KUMARilOHANTV
Notary, Cuttack Town
Regd.No-ON-04/1995
 -3-
proceedings arising from the same till the disposal of
the CRLMC,especially in view of substantial merits of
the Petitioner case, tire Petitioner shall be at a great loss
and would be caused irreparable injury, and the prayer
of the accompanying CRLMC would also be adversely
affected. The Petitioner would also suffer tremendous

harm to its reputation and goodwill due to these

criminal proceedings.

5. That tliis application is made bona fide and is made in

the interest of Justice.

PRAYER

In view of the aforesaid facts & circumstances of the case, it

is respectfully prayed that this Hon'ble Court may be pleased
to-

A. Allow this application and direct stay of the furtlier

proceedings arising from the impugned order and the
impugned complaint during pendency of the present
CRLMC petition;

B. Direct that no coercive actions or requirement of

appearance or production ofthe Petitioners be enforced
during pendency of the CRLMC;

C. Pass any such other order(s)/direction(s) in favour of

the Petitioner as would be deemed fit and proper in the
eye of law. j

PfiAOIPTA KUMAR WOf{Aiv.n>

Notary, Cuttack Town
Regd.NO"QN-04/iS95
 ^1-

And for this act of kindness, the Petitioner shall as in duty

bound ever pray.
BY THE PETITIONER THROUGH

PLACE:

DATE: O'^'O
ADVOCATE

DRAWN BY -

SASWAT KUMAR ACHARYA

ENROLMENT NO.D- 2742/2009

PHADIPTA KUMAR MOHAND

Notary, Cuttack Town
Regd.No-ON-04/1995
 3'

IN THE HIGH COURT OF ORISSA

(CRIMINAL MISCELLANEOUS CASE)

IL....
CRLMCNO. OF 2024 ^

IN THE MATTER OF:

SUBASH AGARWAL ...PETITIONER

VERSUS

UNION OF INDIA&ANR. ...OFF. PARTIES

AFFIDAVIT

1. I, Subash Agarwal, S/o. Mohanlal Agarwal, aged about 58

years, being the Erstwhile Director of Anil Contractors
Pvt. Ltd., residing at N2-88/89, IRC Village, Nayapalli,
Bhubaneswar, Dist.- Khordha, Odisha- 751015.

2. Father's Name: Mohanlal Agarwal.

3. Number ofproceeding pending in the High Court or would

be instituted (Caveat): NO.

4. Statement of facts: As per averments in the petition.

5. The facts stated are true to the best of my knowledge and

belief of the deponent.

f'RADIPTA KUMAR MOHANT>

Notary, Cuttack Town
ReQd.NQ-QN-Q4/1995
 J

V 11JDIWI K.

CERTIFICATE
- r< C
I, Subash Agarwal, S/o. Mohanlal Agarwal, aged about
58 years, being the Erstwhile Director of Anil Contractors
Pvt. Ltd., residing at N2-88/89, IRC Village, Nayapalli,
Bhubaneswar, Dist.- Khordha, Odisha- 751015, being the
deponent/petitioner above named, do hereby solemnly
affirm that the facts stated in paragraphs-1 to are true to
my own knowledge and are true to the best of my
information which 1 obtained from the personal sources.

1, believe the information to be true for the following

reasons: Basing upon official records and information.
Solemnly declare at the. above said this day of
2024. - ^
INDIA

IDENTIFIED BY

CATE DEPONENT
as
emnly aOirm before me by _
is Identified before me by
5 n
om 1 personally know.
day of 2024. pradIPTA KUMAft MOHANT^
Notary, Cuttack Town
Regd.No-ON-Q4/l§95
NOTARY PUBLIC: CUTTACK

ADVOCATE
 OFFICE OF THE DEPUTY SOLICITOR GENERAL OF INDIA
GOVT.OF INDIA
ORISSA HIGH COURT.CUTTACK

TIME 04:31

SL. NO. 1735 16/08/2024

DATE

NO.
CASE TYPE D-CRLMC 20804 YEAR 2024

PETITIONER/APPELLANT SUBASH AGARWAL

RESPONDENT/GPP.PARTY UNION OF INDIA

INDER
D-CRLMC ^(1820/2024) LA
DAVIT

MEMO COUNTER AFFIDAVIT c™anc XTRA COPY

THE AFFIDAVIT DATE CHART/WRITTEN NOTE OF SUBMISSION

PBCl.

1B AUP DEPUTY SOLICITOR GENERAL OF INDIA

ORISSA HIGH COURT,CUTTACK
SQVT. OF INDIA
0RIS6A HIGH COURT
CUTTACK
 COMPUTERISED FILINC COUNTER
ORISSA HIGH COURT,CUTTACK
acknowledgement si IP
Seat No :
Branch No:
Receipt No : 102729/2024 Date Of Receiving : 17/08/2024 Time : 12:10:40 PM
Filing No : D- CRLMC 20804/2024
Case No : CRLMC /O
Received From : Petitioner
Filed By; ADVOCATE FOR THE PETITIONER
Document/si Filed :
2- Authentication Fee — Court Fee -Rs.2(24161/2024)
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