TaxTMI 
TaxTMI 
2011 (6) TMI 723
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....y Value Added Tax Act, 2007. They are liable for commercial tax for the total and taxable turnover. The partnership firm (hereinafter referred as, "Firm") filed a return of annual turnover in form A1 for the year 2000-01 and also for the year 2001-02. For the year ended up to March 31, 2001, the firm reported a total and taxable turnover of Rs. 4,18,85,213.56 with tax due of Rs. 50,25,809.52. For the year ended up to March 31, 2002, a taxable turnover of Rs. 4,32,53,519.15 with tax due of Rs. 51,90,422.28 was filed. On placement of relevant returns and books of accounts and also the C forms the Commercial Tax Officer, Mahe, accepted the returns and books of accounts and passed an assessment order on January 5, 2005, for both the assessment years. However, acting on a tip off, the respondent, Commercial Tax Officer, Mahe, obtained form C declaration from M/s. Hindustan Petroleum Corporation, Chennai on December 29, 2008. The form C would reveal that the firm had purchased the petrol, diesel and petroleum products for the value of Rs. 7,78,30,704.92 for the year 2000-01 and for Rs. 7,38,74,437.58 for the year 2001-02. Therefore, the respondent found the actual purchase an....
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....ion 52(2) of the Act 1957. Reiterating the above grounds, Mr. R. Yasod Vardhan, learned senior counsel for the petitioner, would submit that the respondent has invoked the offences under the Indian Penal Code only to get over the point of limitation and the respondent is not an authorised officer to file a complaint invoking the provisions of the Indian Penal Code. The learned senior counsel pointed out that when Act 1967 itself is repealed, filing a complaint under the repealed Act is not maintainable. The learned senior counsel further submitted that taking cognizance by the Magistrate without following the provisions of section 200 of the Criminal Procedure Code is not legal and the respondent is not empowered under the Act to file a private complaint invoking criminal offences. The learned counsel relied on a decision reported in [2009] 7 SCC 526 (Jeewan Kumar Raut v. Central Bureau of Investigation). Countering the arguments, Mr. T. P. Manoharan, the learned Special Public Prosecutor for Pondicherry, would submit that the petitioners have defrauded the Government by suppressing the total turnover of more than Rs. 3 crores per year and therefore, appropriate action ....
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.... reveal the total purchase of Rs. 7,78,30,704.92 and for the year 2001-02 the value was Rs. 7,38,74,437.58. Therefore, the Commercial Tax Officer found a huge difference of a sum of Rs. 3,47,03,278.26 for the year 2000-01 and Rs. 2,29,34,144.31 for the year 2001-02. According to the complainant, these two amounts are liable for tax and the firm as well as the partners had concealed the turnover of petroleum products for the year 2001-02 resulting in evasion of sales tax and thus committed the offence punishable under section 49(2)(a) of the Act 1967 read with section 81 of the Act 2007. The complainant has further alleged that the firm had committed an offence of fabricating false evidence as defined under section 192 of the Indian Penal Code punishable under section 193 of the Indian Penal Code read with section 34 of the Indian Penal Code. The complainant had also alleged that the firm has committed criminal breach of trust which is punishable under section 409 of the Indian Penal Code, cheating and forgery for an offence under section 468 of the Indian Penal Code. What is challenged before this court is that the complainant cannot invoke the penal offences and cannot pr....
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....-section (1), a penalty of double the amount of the tax so assessed:- Provided that no penalty shall be imposed under this section unless the dealer affected has had a reasonable opportunity of showing cause against such imposition. (4) The powers under sub-section (1) or sub-section (2) may be exercised by the assessing authority even though the original order of assessment, if any, passed in the matter has been the subject-matter of an appeal or revision. (5) In computing the period of limitation for assessment or reassessment under this section, the time during which the proceedings for assessment or reassessment remained stayed under the orders of a Civil Court or other authority shall be excluded. Chapter VIII deals with offences and penalty. Section 59 of the New Act is corresponding to section 49 of the old Act. Sub-clause (2)(a) of section 59 reads as follows:- 59. Offences and penalties:- (1) . . . (2) Any person who,- (a) wilfully submits an untrue return, or, not being already an assessee under this Act, fails to submit a return as required by the provisions of this Act or the Rules made thereunder. The maximum punishment for submitting an untr....
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....or a term which may extend to three years, and shall also be liable to fine." Section 409 of the Indian Penal Code deals with criminal breach of trust by public servant, banker, merchant or agent. Section 468 deals with an offence of forgery for the purpose of cheating. The offences under the penal code are distinct from the offence mentioned in both the old and new Act. For an escaped turnover, a distinct provision is given under the Act and for filing untrue returns and a distinct offence is made under the Act. If any assessee escapes any turnover, an assessment can be imposed for the escaped turnover subject to five years limitation. A criminal prosecution can be launched for filing untrue returns subject to one year limitation. In the present case, the respondent had found out that the firm and its partners have filed an untrue return and the same is found out only on December 29, 2008, much after the period of five years. Therefore, the prosecution either under section 49 of the old Act or 59 of the new Act is barred by limitation. Now let us see whether the respondent has made out a case' for an offence under sections 193, 409 and 468 of the Indian Penal Co....
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....ed by the Magistrate taking cognizance of the offences was illegal. With respect, we find it difficult to comprehend the aforesaid reasoning of the High Court. Section 6 of the Imports and Exports (Control) Act provides that no court shall take cognizance of any offence punishable under section 5 except upon a complaint in writing made by an officer authorised in this behalf by the Central Government by a general or a special order. That the Deputy Chief Controller of Imports and Exports had been so authorised by the Central Government is not in dispute. Proviso (a) to section 200, Cr. P. C lays down that if a public servant acting or purporting to act in the discharge of his official duties has made the complaint in writing, the Magistrate need not examine the complainant and the witnesses. In view of the twelfth clause of section 21, IPC which provides that every person in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government shall be a public servant, the Deputy Chief Controller of Imports and Exports is a public servant. It is also not the case of the accused-respondents that the Deputy Chief Controlle....