TaxTMI 
TaxTMI 
TaxTMI 
2019 (6) TMI 55
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....ing for registration, it was declared that the office space for the firm was obtained on rent from Mahaveer Singh son of Ramesh Chandra at Rs. 1,000/- per month. The rent agreement and receipt of electricity connection, dated 17.02.2017, obtained from Dakshinanchal Vidyut Vitran Nigam Limited was also uploaded at the portal. It is alleged that on 27.09.2018, an inquiry about the dealer was conducted by Sri Narendra Kumar, Deputy Commissioner, Commercial Tax; Sri Gulab Chandra, Assistant Commissioner, Commercial Tax; and Ms. Isha Gautam, Assistant Commissioner. It was found that at the disclosed place of business, there was no display board to show the name of the firm; the disclosed place was just a room measuring 18 feet x 20 feet; that, at the time of inspection, the landlord Mahaveer Singh was found, who disclosed that, on 01.03.2018, the room was let out to Govind Agrawal (proprietor of the petitioner-firm) on a rent of Rs. 1,000/- per month; that he himself had applied for registration for the trader; and that he had been an Advocate for the firm. It is alleged that the room had no books of account relating to the firm; that only a computer and laptop with a printer was found,....
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....lued Rs. 35,02,28,642/- whereas the outward supply was by two e-way bills of Rs. 1,64,334/- and 14,94,774/-. It was alleged that as, despite such large quantity of inward supply, the outward supply was negligible, a deeper probe was made. Upon which, it was found that Govind Enterprises had obtained 295 e-way bills in respect of inward supply of goods worth Rs. 35,02,28,642/- by showing its place of business at Kosi Kalan, Mathura and Kanpur. The probe revealed that the disclosed bank account of the firm, which was in operation since 27.08.2009, up to 26.11.2018, had a balance of mere Rs. 6,448/-. It was further found that in between 27.08.2009 and 26.11.2018, the total amount deposited in the account was just Rs. 3,73,389/- whereas total withdrawal therefrom was of Rs. 4,00,017/-, which suggested that the firm's proprietor, namely, Govind Agrawal, had limited means to carry out such huge business as could be gathered from the inward e-way bills obtained by him. It is further alleged that upon inquiry another undisclosed bank account of Govind Enterprises came to light which was in Gwalior, Madhya Pradesh. The said bank account stood in the name of M/s Govind Enterprises with addr....
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....y justified. By placing reliance on the provisions of Section 69 of the U.P. Act, Sri Mathur contended that the power to arrest is to be exercised only where the Commissioner has reasons to believe that a person has committed any offence specified in clause (a ) or clause (b) or clause (c ) or clause (d) of sub-section (1) of Section 132 of the U.P. Act, and, by order, has authorized any officer of Sales tax to arrest such person. He submitted that, under the circumstances, first a proceeding has to be drawn under the provisions of the U.P. Act and, only, thereafter there could be arrest, that too, after recording satisfaction. Hence, lodging of the first information report straightaway is not legally permissible. In the alternative, Sri Mathur submitted that even assuming that a first information report can be registered, as no demand for recovery has yet been issued, there is no justification to effect arrest of the petitioner pending investigation. Per contra, Sri C.B. Tripathi, learned Special Standing Counsel, representing Revenue, submitted that Section 131 of U.P. Act, which is pari materia Section 131 of Central Act, specifically provides that no confiscation made or pen....
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....ssed. In support of his contention that there is no legal restriction placed on lodging of FIR and the same could be lodged even where proceedings could be undertaken for recovery of tax etc., Sri Tripathi placed reliance on a decision of the Apex Court in the case of State of West Bengal Vs. Narayan K. Patodia (2000) 4 SCC 447 and on a division bench decision of this Court in the case of Ashok Kumar Vs. State of U.P. and others reported in 2000 UPTC 916. As parties had exchanged their affidavits, after hearing the counsel for the parties at length, we have proceeded to decide the matter finally at the admission stage itself. Before we proceed to address the rival submissions, it would be apposite for us to examine the relevant provisions of the U.P. Act cited by the learned counsel for the parties. Learned counsel for the petitioner has cited the provisions of Sections 69, 122, 132 and 134 of the U.P. Act. Section 122 of the U.P. Act is extracted below:- "122. Penalty for certain offences.- (1) Where a taxable person who-- (i) supplies any goods or services or both without issue of any invoice or issues an incorrect or false invoice with regard to any such supply; (ii) i....
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....ordance with the provisions of this Act or the rules made thereunder or furnishes false information or documents during any proceedings under this Act; (xviii) supplies, transports or stores any goods which he has reasons to believe are liable to confiscation under this Act; (xix) issues any invoice or document by using the registration number of another registered person; (xx) tampers with, or destroys any material evidence or document; (xxi) disposes off or tampers with any goods that have been detained, seized, or attached under this Act, he shall be liable to pay a penalty of ten thousand rupees or an amount equivalent to the tax evaded or the tax not deducted under section 51 or short deducted or deducted but not paid to the Government or tax not collected under section 52 or short collected or collected but not paid to the Government or input tax credit availed of or passed on or distributed irregularly, or the refund claimed fraudulently, whichever is higher. (2) Any registered person who supplies any goods or services or both on which any tax has not been paid or short-paid or erroneously refunded, or where the input tax credit has been wrongly availed or utilised....
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....und of tax; (c) avails input tax credit using such invoice or bill referred to in clause (b); (d) collects any amount as tax but fails to pay the same to the Government beyond a period of three months from the date on which such payment becomes due; (e) evades tax, fraudulently avails input tax credit or fraudulently obtains refund and where such offence is not covered under clauses (a) to (d); (f) falsifies or substitutes financial records or produces fake accounts or documents or furnishes any false information with an intention to evade payment of tax due under this Act; (g) obstructs or prevents any officer in the discharge of his duties under this Act; (h) acquires possession of, or in any way concerns himself in transporting, removing, depositing, keeping, concealing, supplying, or purchasing or in any other manner deals with, any goods which he knows or has reasons to believe are liable to confiscation under this Act or the rules made thereunder; (i) receives or is in any way concerned with the supply of, or in any other manner deals with any supply of services which he knows or has reasons to believe are in contravention of any provisions of this Act or the ru....
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....e (b) or clause (c) or clause (d) of sub-section (1) and punishable under clause (i) of that sub-section shall be cognizable and non-bailable. (6) A person shall not be prosecuted for any offence under this section except with the previous sanction of the Commissioner. Explanation.- For the purposes of this section, the term "tax" shall include the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or refund wrongly taken under the provisions of this Act, the State Goods and Services Tax Act, the Integrated Goods and Services Tax Act or the Union Territory Goods and Services Tax Act and cess levied under the Goods and Services Tax (Compensation to States) Act." By referring to Clauses (f) and (k) of sub-section (1) of Section 132, learned counsel for the petitioner submitted that the allegations in the impugned FIR, even if accepted as correct, may disclose offences specified in those clauses therefore, by virtue of the provisions of subsection (4) read with sub-sections (5) and (6) of Section 132 of the U.P. Act, they would be non cognizable. Hence, lodging of the impugned FIR is not legally justified as proceeding could be initiated only under....
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....135 of the U.P. Act, which are extracted below:- "131. Confiscation or penalty not to interfere with other punishments.- Without prejudice to the provisions contained in the Code of Criminal Procedure, 1973, no confiscation made or penalty imposed under the provisions of this Act or the rules made thereunder shall prevent the infliction of any other punishment to which the person affected thereby is liable under the provisions of this Act or under any other law for the time being in force." "135. Presumption of culpable mental state.- In any prosecution for an offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defense for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation.-For the purposes of this section,-- (i) the expression "culpable mental state" includes intention, motive, knowledge of a fact, and belief in, or reason to believe, a fact; (ii) a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existe....
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....unishment for the same offence for which the accused has been prosecuted and punished previously. A subsequent trial or a prosecution and punishment are not barred if the ingredients of the two offences are distinct. 9. The rule against double jeopardy is stated in the maxim nemo debet bis vexari pro una et eadem causa. It is a significant basic rule of criminal law that no man shall be put in jeopardy twice for one and the same offence. The rule provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained in Section 26 of the General Clauses Act, 1897, Section 300 of the Code of Criminal Procedure, 1973 and Section 71 of the Indian Penal Code. Section 26 of the General Clauses Act provides: "26. Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." (emphasis supplied) Section 300 CrPC provides, inter alia,- "300. (1) A person who has once been tried by a court of competent jurisdiction for an offence and co....
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....under Sections 330 and 348 IPC and, therefore, he was alleged to have committed two separate offences under Section 201 IPC. It was held that neither Section 71 IPC nor Section 26 of the General Clauses Act came to the rescue of the accused and the accused was liable to be convicted for two sets of offences under Section 201 IPC though it would be appropriate not to pass two separate sentences. (Emphasis Supplied) In State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772, the principal question that arose for consideration before the apex court was whether the provisions contained in Sections 21, 22 and other sections of the Mines and Minerals (Development and Regulation) Act, 1957 operate as bar against prosecution of a person who has been charged with allegation which constitutes offences under Section 379 and other provisions of the Penal Code, 1860. In other words, the question for consideration was whether the provisions of the Mines and Minerals Act explicitly or impliedly exclude the provisions of the Penal Code when the act of an accused is an offence both under the Penal Code and under the provisions of the Mines and Minerals (Development and Regulation) Act. Deciding the iss....
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....regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitutes an offence under the Penal Code. 71. However, there may be a situation where a person without any lease or licence or any auth....
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....DR Act. Consequently, the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the Magistrates concerned to proceed accordingly." (Emphasis Supplied) In a more recent decision of the apex court, rendered in Criminal Appeal No.1195 of 2018 arising out of Special Leave Petition (Criminal) No.4475 of 2016, decided on September 20, 2018 (State of Maharashtra and another Vs. Sayyed Hassan Sayyed Subhan and others), the issue that had arisen for consideration was whether an accused could be prosecuted for an offence punishable under the Penal Code for which a proceeding can also be drawn under the provisions of the Food Safety and Standards Act. By relying upon the decision of the Apex Court in State of Rajasthan Vs. Hat Singh (supra) and State of Delhi (NCT) Vs. Sanjay (supra), the apex court, in paragraphs 7 and 8 of the judgment, held as follows:- "7. There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission constitutes an off....
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.... who was a fictitious person and the application was submitted by obtaining forged document. It was alleged that on the basis of the fabricated document, the accused obtained registration under the Sales Tax Act which entitled him to make purchases at concessional rate of sales tax, and also to receive permits for importing spices from outside the State. It was alleged that on the strength of the registration so obtained, the respondent applied for issuance of five permits to import spices. The Bureau of Investigation of Government of West Bengal conducted discreet investigation and found that the accused had committed forgery and impersonation to defraud sales tax amount. The complaint was presented by the Assistant Commissioner, Commercial Tax to the Deputy Superintendent of Police, who was attached to the Bureau of Investigation formed under the Sales Tax Act. The Deputy Superintendent, in turn, forwarded the complaint to the officer in-charge of police station with a request to investigate the matter for offences punishable under Sections 403, 409, 465, 468, 471, 419, 420 read with 120-B IPC and the provisions of the Sales Tax Act. Pursuant to the request, the first information....
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....shment to which the person affected thereby is liable under the provisions of the U.P. Act or under any other law for the time being in force. The argument of the learned counsel for the petitioner that except for offences specified in sub-section (5) of section 132, sub-section (4) of section 132 of the U.P. Act renders all offences under the U.P. Act non cognizable, therefore no FIR can be lodged, is not acceptable, because sub-section (4) speaks of offences under the U.P. Act and not in respect of offences under the Penal Code. It is noteworthy that section 135 of the U.P. Act makes a significant departure from general law by providing that in any prosecution for an offence under the U.P. Act, which requires a cuplable mental state on the part of the accused, the court shall presume the existence of such mental state. The same does not hold true for offences punishable under the Penal Code. Hence, to prove mensrea, which is one of the necessary ingredients of an offence punishable under the Penal Code, the standard of proof would have to be higher to prove commission of an offence punishable under the Penal Code than what would be required to prove an offence punishable under t....