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Judgment
D.N. Patel, J. (Oral) - Having heard counsels for both the sides and looking to the facts and circumstances of the case it appears that:
(i) sizeable amount of the TDS has been deducted by this petitioner from the amount paid to the sub contractor of this petitioner since 200708, but, the same has not been deposited with the respondent no.1 i.e. State of Jharkhand.
(ii) one of the sub contractors namely, M/s R & P Construction has lodged a complaint before the Deputy Commissioner of Commercial Taxes, Bokaro Circle, Bokaro that after deducting the TDS by this petitioner, the necessary certificates have not been issued.
(iii) counsel appearing for the petitioner has also admitted that the said TDS has not been deposited with the State of Jharkhand either due to inadvertence or due to mistake or due to partly ill advise, but, the reasons are bona fide as per clause 9 of the Letter of Intent between this petitioner and its sub contractor (complainant).
We direct the petitioner to join the Directors of the petitioner as party respondents as well as the Chartered Accountant/Chartered Accountants, who are from the year 2007-08 onwards.
Amendment is allowed and shall be carried out by red ink.
Notice to the newly joined parties. Notice will be served by the petitioner upon its Directors and upon its Chartered Accountant/Chartered Accountants. They will show cause to the Court that why criminal prosecution should not be initiated upon him and the Chartered Accountants will show cause why his licence/certificate of practise should not be forfeited or suspended and why the complaint should not be made to the Institute of Chartered Accountants.
We further direct this petitioner to produce on record the audited balance-sheet and report of the Chartered Accountants from the year 200708 onwards which were submitted to the Registrar of Companies.
We also direct the petitioner to join Registrar of Companies as a party respondent.
Notice to the Registrar of Companies also, which will be served by this petitioner.
Registrar of Companies will also point out whether the audited balance-sheet and Chartered Accountants'' report have been submitted to the Registrar of Companies or not by this petitioner for the year 2007-08 onwards.
We also direct the respondent-State of Jharkhand to point out who were responsible officers from the year 2007-08 that such huge TDS has been deducted by the petitioner and the respondent-State Officers were not aware. They must have carefully gone through the audited balance-sheet. Every year there cannot be a mistake by the respondent-State officers.
Repetition of error means, prima facie, deliberate action by the petitioner and connivance by the State Government officers.
Chartered Accountant/Chartered Accountants of the petitioner from the year 2007-08 shall remain personally present before this Court on the next date of hearing or they shall engage their Advocates to represent their case by the next date of hearing.
We also direct the petitioner to join Principal Accountant General (Audit), Jharkhand, Ranchi as party respondent.
Notice to the aforesaid party. Mr. Sudarshan Srivastava, learned counsel waives notice on behalf of the Accountant General and he shall assist this Court about the duty of the Chartered Accountants so far as audit of the Chartered Accountants of the petitioner-company is concerned.
Necessary amendment, as stated herein above, shall be carried out by 2nd March, 2016.
This matter is adjourned on 15th March, 2016.