Clifton Zimmermann vs the State of Maharashtra — Income Tax | Bombay HC (2025)

Clifton Zimmermann vs the State of Maharashtra — Income Tax | Bombay HC (2025)

What the court decided

AI extract

Outcome

Impugned orders issuing process and summons dated 5 March 2014 and 6 July 2022 quashed and set aside; relief confined to the Petitioner (Accused No.5) only; petition disposed of without costs.

Issue for consideration

Whether a Non-Executive Director (here, an Additional Independent and Non-Executive Director) can be charged with the offence under Section 276B read with Section 278B of the Income Tax Act, 1961 on the averments made in the complaint. +1 more

Court's answer

The Court found that, apart from the bald averments in the complaint, there is no averment showing the Petitioner was responsible for the day-to-day conduct and affairs of the Company; his Form No.32 status as Additional Independent and Non-Executive Director stands unrebutted; and no notice was issued treating him as a principal officer.

Ratio / Principle

The facts of the present case are similar to those in Homi Phiroz Ranina vs. State of Maharashtra, (2003) 3 Mah LJ 34, and the Court proceeds on that footing in quashing the process against the Petitioner.

Key takeaways

The process was issued without due application of mind by only mentioning 'issue process'; therefore, on both grounds (similarity to Homi Phiroz Ranina and absence of application of mind), the impugned orders issuing process and summons dated 5 March 2014 and 6 July 2022 are quashed and set aside.ratio¶¶17
The Court clarified that its order is applicable only to the Petitioner (Accused No.5) and not to any other accused in the criminal case.ratio¶¶18

Detailed headnote1 paragraphs

Criminal Writ Petition — quashing of process and summons — Income Tax Act, 1961, S.276B r/w S.278B — prosecution of company Director for failure to deduct and deposit TDS — complaint contained only bald averments that Petitioner, as Director/principal officer, was responsible for deduction of tax at source and timely payment, with no averment of responsibility for day-to-day conduct of the Company's business — Petitioner's Form No.32 showing he was an Additional Independent and Non-Executive Director unrebutted — no notice treating him as principal officer — facts held similar to Homi Phiroz Ranina vs. State of Maharashtra, (2003) 3 Mah LJ 34 — process additionally issued mechanically, without due application of mind, by only mentioning 'issue process' — impugned orders issuing process dated 5 March 2014 and summons dated 6 July 2022 in Criminal Case No.SW/3800068/2014 (Metropolitan Magistrate, 38th Court, Ballard Pier, Mumbai) quashed and set aside — order expressly confined to Petitioner as Accused No.5 and does not extend to other co-accused — TDS admittedly deposited with interest for the delay — Petition disposed of, no costs.

2025:BHC-AS:33784

Sayyed 15-WP.2803.2024.docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.2803 OF 2024

Dr. Clifton Zimmermann ...Petitioner Versus

The State of Maharashtra & Ors. ...Respondents

Mr. Kushal Mor a/w Mr. Kunal Kanungo, Ms. Rupa Shaw i/by S. Venkateshwar for the Petitioner.

Mr. Shrikant Yadav, APP for Respondent No.1-State. Mr. Y. S. Bhate for Respondent Nos.2 & 3.

CORAM : Jitendra Jain, J. DATED : 7 August 2025

PC.:-

This petition challenges the issuance of process and summons against the Petitioner in Criminal Case No.SW/3800068/2014 before the learned Metropolitan Magistrate 38^th Court at Ballard Pier, Mumbai

In complaint, it is baldly averred that the Petitioner being a Director of the Company was responsible for deducting the tax at source and making the payment in time with the treasury. In the complaint, it is also baldly averred that the Petitioner is a principal officer responsible for deduction of tax at source. Except this bald averments, there is no other averment on the basis of which it can be said that the Petitioner was responsible in day-to-day conduct and affairs of the business of the Company. The Petitioner has filed Form No.32 to show that he is an Additional Independent and Non-Executive Director of the Company. This has not been rebutted by the Respondents. There is also no notice to the Petitioner for treating him as a principal officer.

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Sayyed 15-WP.2803.2024.docx

The learned counsel for the Petitioner and Respondents submit that there was a delay in depositing the TDS, but the TDS has been deposited alongwith interest for the delay.

The issue of whether Non-Executive Director can be charged with the offence under Section 276B read with Section 278B of the Income Tax Act, 1961 had come up before this Court in the case of Homi Phiroz Ranina vs. State of Maharashtra¹ . In my view, the facts of the present case are similar to the facts of present case in the case of Homi Phiroz Ranina (supra) . Furthermore, the process has been issued without due application of mind by only mentioning issue process. Therefore, on both these grounds, the impugned orders issuing process and summons dated 5 March 2014 and 6 July 2022 respectively are hereby quashed and set aside.

I clarify that the order passed in this petition is applicable only to the Petitioner (Accused No.5) before me and not to any other Accused in the criminal case filed by the Respondents which is a subject matter of the present petition.

The Petition is disposed of in above terms. No costs.

1 (2003) 3 Mah LJ 34

Signed by: Sayyed Saeed Ali Designation: PA To Honourable Judge Date: 07/08/2025 17:46:23

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