TaxTMI 
TaxTMI 
2017 (4) TMI 876
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.... Tax', inter alia, alleging that the applicant evaded the tax liability of Rs. 24,96,72,373/by preparing false record, the goods were exported outside the State of Gujarat, and thereby, evading the Value Added Tax payable to the State of Gujarat. 3 Mr. N.D. Nanavaty, the learned senior counsel appearing for the applicant submitted that when a special statute is created by the legislature to deal with particular type of offences, even if for the similar Act, an offence is created in a general statute i.e. the Indian Penal Code, a provision of the general statute cannot be invoked. The second contention of Mr. Nanavaty is that under Section 88 of the Act, 2003, the investigation of the crime in question cannot be entrusted to the police machinery. 4 Mr. Nanavaty seeks to rely upon two decisions: One of the Supreme Court in the case of Sharat Babu Digumati vs. Govt. of NCT of Delhi [(2017) 2 SCC 18] and the another of the Punjab and Haryana High Court in the case of M/s. Mahalakshmi Spinners Ltd vs. State of Haryana [2007 Cri. L.J. 429]. 5 On the other hand, this application has been vehemently opposed by Mr. Mitesh Amin, the learned Public Prosecutor appearing on behalf of the....
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....le under this Act; shall on conviction, be punished with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine of rupees twenty thousand. (2)Whoever (a) carries on business as a dealer without being registered in contravention of section 21; or (b) fails without sufficient cause to furnish any information required by section 26; or (c) fails to surrender his certificate of registration as provided in subsection (9) of section 27; or (d) fails without sufficient cause to furnish any returns as required by section 29 by the date and in the manner prescribed; or (e) without reasonable cause, contravenes any of the provisions of section 31; or (f) fails without sufficient cause, when directed so to do under section 62 to keep any accounts or record, in accordance with the directions; or Offences and penalties. (g) fails without sufficient cause, to comply with any requirements made of him under section 67, or obstructs any officer making inspection or search or seizure under that section; or (h) obstructs or prevents any officer performing any function under this Act; or (i) being owner or incharge of a goo....
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.... prescribed, the Commissioner may authorise either generally or in respect of a particular case or class of cases any officer or person subordinate to him to investigate all or any of the offences punishable under this Act. (2)Every officer or person so authorized shall, in the conduct of such investigation, exercise the powers conferred by the Code of Criminal Procedure, 1973 upon an officer incharge of a police station for the investigation of a cognizable offence." 12 The plain reading of Section 85 of the Act referred to above would indicate that some of the offences with which the applicant herein has been charged is found both in Section 85 of the Value Added Tax Act and also under the Indian Penal Code. However, from the record, it can clearly be seen that in addition to the offences which are common in both the statute, the F.I.R. is also registered for certain offence under Sections 406, 409, 420, 465, 468, 471, 474, 477(A) and 120B of the Indian Penal Code. 13 A similar question fell for consideration before the Supreme Court in the case of State of West Bengal (supra). In the said case, under the West Bengal Sales Tax Act, a provision was made that the investigation....
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....n Penal Code or any other enactment are also detected during the course of investigation conducted by the Bureau there is no inhibition to pass over the investigation to the regular police. 18. If the view of the learned single judge gets approval it would lead to startling consequences. The consequences of such an interpretation would be that if the person who commits the offence under Section 88 of the Act also commits other serious offences falling under Indian Penal Code as part of the same transaction neither the regular police nor any special police force nor even the Central Bureau of Investigation can be authorised to conduct investigation. The accused in such cases would then be well ensconced insulated from the legal consequences of proper and effective investigation. Criminal justice would be the serious casualty then. 19. That apart, how could the FIR be quashed if the investigating agency should have been different? By lodging FIR alone no investigation is conducted by the police. It is the first step towards starting investigation by the police. If High Court was of the opinion that investigation has to be conducted by the Bureau then also there was no need to qua....
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.... of both the Chartered Accountants Act, 1949 and the Penal Code, observed as under: "20 In other words, if the particular act of a member of the Institute or a non member or a company results in contravention of the provisions contained in Section 24 or subsection (1) of Sections 24A, 25 or 26 and such act also amounts criminal misconduct which is defined as an offence under the IPC, then a complaint can be filed by or under the order of the Council or of the Central Government under Section 28, which may ultimately result in imposition of the punishment prescribed under Section 24 or subsection (2) of Section 24A, 25 or 26 and such member or non member or company can also be prosecuted for any identified offence under the IPC. 21 The object underlying the prohibition contained in Section 28 is to protect the persons engaged in profession of chartered accountants against false and untenable complaints from dissatisfied litigants and others. However, there is nothing in the language of the provisions contained in Chapter VII from which it can be inferred that Parliament wanted to confer immunity upon the members and non members from prosecution and punishment if the action of suc....
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....eads to anomaly or absurdity and makes the statute vulnerable to the attack of unconstitutionality should be avoided in preference to the other which makes it rational and immune from the charge of unconstitutionality. That apart, the Court cannot interpret the provisions of the Act in a manner which will deprive the victim of the offences defined in Sections 416, 463, 464, 468 and 471 of his right to prosecute the wrong doer by filing the first information report or complaint under the relevant provisions of Cr.P.C. 25 We may add that the respondent could have been simultaneously prosecuted for contravention of Sections 24, 24A and 26 of the Act and for the offences defined under the IPC but in view of the bar contained in Article 20(2) of the Constitution read with Section 26 of the General Clauses Act, 1897 and Section 300 Cr.P.C., he could not have been punished twice for the same offence." 17 I have to my advantage a decision of the Punjab and Haryana High Court rendered in the case of Sharanjit Singh vs. State of Punjab [Criminal Miscellaneous Application No.29107 of 2013 decided on 21st December 2013]. In the said case also, the contention on behalf of the Bank was that ....
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....uals. However, the said protection has been expanded in the dictum of Shreya Singhal (supra) and we concur with the same. Section 81 also specifically provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. All provisions will have their play and significance, if the alleged offence pertains to offence of electronic record. It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 of the IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent. This is the mandate behind Section 81 of the IT Act. The additional protection granted by the IT Act would apply. In this regard, we may refer to Sarwan Singh and Anr. V. Kasturi Lal [(1977) 1 SCC 750. The Court was considering Section 39 of Slum Areas (Improvement and Clear....
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....icipal Act, 1950 or Orissa Agricultural Produce Markets Act, 1956 should apply. Section 4(4) of the 1956 Act contained a nonobstante clause. In that context, the Court opined: "The Act, however, contains special provisions. The provision of Section 4(4) of the said Act operates notwithstanding anything to the contrary contained in any other law for the time being in force. The provisions of the said Act, therefore, would prevail over the provisions of the Orissa Municipal Act. The maxim "generalia specialibus non derogant" would, thus, be applicable in this case. (See D.R. Yadav v. R.K. Singh, 2004(1) S.C.T. 223 : (2003) 7 SCC 110, Indian Handicrafts Emporitum v. Union. of India, (2003) 7 SCC 589 and M.P. Vidyut Karamchari Sangh v. M.P. Electricity Board, 2004(2) S.C.T. 277: (2004) 9 SCC 755). 30. In Ram Narain (supra), the Court faced a situation where both the statutes, namely, Banking Companies Act, 1949 and the Displaced Persons (Debuts Adjustment) Act, 1951 contained nonobstante clause. The Court gave primacy to the Banking companies Act. To arrive at the said conclusion, the Court evolved the following principle: "7. ... It is, therefore, desirable to determine the ov....
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....hich ordinarily would be applicable for investigation into a cognizable offence or the other provisions, may not be applicable. Section 4 provides for investigation, inquiry, trial, etc. according to the provisions of the Code. Subsection (2) of Section 4, however, specifically provides that offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, tried or otherwise dealing with such offences. 23. TOHO being a special Act and the matter relating to dealing with offences thereunder having been regulated by reason of the provisions thereof, there cannot be any manner of doubt whatsoever that the same shall prevail over the provisions of the Code." And again:" 27. The provisions of the Code, thus, for all intent and purport, would apply only to an extent till conflict arises between the provisions of the Code and TOHO and as soon as the area of conflict reaches, TOHO shall prevail over the Code. Ordinarily, thus, although in terms of the Code, the respondent upon completion of investi....