TaxTMI 
TaxTMI 
TaxTMI 
2020 (2) TMI 620
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....ial. At the time of making the said application, he had declared his I.D. e-mail address as [email protected] and mobile no. 8533952295. At the time of obtaining the registration by the applicant, he had shown his address as main business place as first floor, N.H. in front of Anaj Mandi Gate No.1, Kosi Kalan which was an accommodation on rent taken from Mahavir Singh, son of Ramesh Chand, resident of Haripura, Kosi Kalan at the rate of Rs. 1,000/- per month and in that regard a deed of rent was also executed and a receipt no. 200041391433 dated 17.02.2017 was also issued in that regard by Dakshiranchal Electricity Distribution Nigam Ltd. which was uploaded on the portal. From the said uploaded payment of the electricity bill, it was evident that at the time of registration, the applicant has shown his business being run from the said address, which place was owned by the first party namely, Mahavir Singh and the second party was the applicant, between them the rent agreement was executed, but the place meant for being signed by the witnesses were left vacant. On 27.09.2018 an enquiry was conducted by Sri Narendra Kumar, Deputy Commissioner, Commercial Tax, Kosi Kalan as....
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....en opened since long, right from the date the said shop was taken on rent and that since then only one truck had been unloaded there which contained 108 Gattas Panni Plastic which was received from Noida, Sector 57, which weighed about 30 kgs. The shop was found closed as locks were put on it. When account books were demanded, it was told that bill parchas were with the Accountant who had gone to Mathura. No account books could be found and it was said that last time the consignment had been received a week ago. Two persons were said to be working there. At the time of inspection, the owner of the shop met the said Commissioner who was told that he had not entered into written agreement nor had he given his shop to any person by the name of Govind Agarwal running Govind Enterprises. He had given the said shop on rent to one Dharmendra Gurjar only for a month but what does he do, he had no knowledge and the shop was locked, keys of which is with the Accountant. At the time of registration, the applicant had declared his saving bank account no.04672121008171 in Oriental Bank of Commercial village and post Auragabad, District Mathura. 4. Further, on the said date the applicant had t....
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....iving address of a different bank branch would reflect that the address of the bank branch was mentioned as HDFC, DD Nagar Abhilasha Bhawan house No.1, R.J. Puram Mahrautra Firm, Bhind Road, Gwalior, M.P.-474020. When the said bank account was inspected, it was found that the applicant had deposited a sum of Rs. 9,39,07,715/- between 11.07.2018 to 16.11.20018 and the details of the same have been mentioned in the FIR. The said account reveals that the applicant was running his business by the name of Govind Enterprises from an address 47, Rajpal Nagar Colony, N.H-2, Rachi Bangar, Baad, Mathura then why he felt it necessary to open another account in State of M.P. Further, whatever amount he received after sale to other traders, the entire transaction happened in the State of U.P. and it is not clear as to under what circumstances, he deposited such huge amount in other State while there was facility available of Internet Banking, RTGS as well as NEFT. The deposit of huge amount by a third trader and others in the State of M.P. shows that in collusion with some unknown person, a conspiracy was hatched for evasion of tax. After enquiry into the units of the applicant's firm and from....
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....oida and when survey was done of the said company, it came to light that production was being done of high quality printing packing material by Motaz Enterprises Pvt. Ltd. It is worth noting that the applicant's firm had purchased through eway bills from Motaz Enterprises Pvt. Ltd. Bhind, M.P., GST No . 09ZAACCM8173H1Z6 and the said printed packing material was to the tune of Rs. 17,55,80,481.00 The said packing material was being used by the production companies, therefore, the same was not worth being sold in open market and it made absolutely clear that the firm of the applicant, in collusion with others, was involved in tax evasion activities and hence an offence under sections 420, 467, 468, 471, 34 and 120B IPC and SGST/CGST Act have been committed by him. 5. Submission made by the learned counsel for the applicant is that in spite of allegedly tax evasion, till date, no case has been made out under the U.P. Goods and Services Tax Act and Rules 2017 or under Central Goods and Services Tax 2017 or IGST Act, 2017. Further without deciding as to whether the applicant had evaded tax or not, lodging of FIR was improper that the applicant had contravened the provisions of sections....
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....ng on the criminal proceeding and the judgments of this Court in the case of Uttam Chand (supra), G.L.Didwania (supra) and K.C. Builders (supra) wherein this Court had taken a view that when there is categorical finding in the adjudication proceeding exonerating the person which is binding and conclusive, the prosecution cannot be allowed to stand. Judgments of this Court are not to be read as statute and when viewed from that angle there does not seem any conflict between the two sets of decisions. It will not make any difference on principle that latter judgments pertain to cases under theIncome Tax Act. The ratio which can be culled out from these decisions can broadly be stated as follows :- (i) Adjudication proceeding and criminal prosecution can be launched simultaneously; (ii)Decision in adjudication proceeding is not necessary before initiating criminal prosecution; (iii)Adjudication proceeding and criminal proceeding are independent in nature to each other; (iv)The finding against the person facing prosecution in the adjudication proceeding is not binding on the proceeding for criminal prosecution; (v) Adjudication proceeding by the Enforcement Directorate is not....
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....e the same charges before the criminal Court when the standard of proof may be much higher and stringent than the standard of proof required in departmental proceedings." The Delhi High Court also considered this question arising out of a case under Foreign Exchange Regulation Act, in detail in the case of Sunil Gulati & Anr. V. R.K. Vohra 145 (2007) DLT 612, and held as follows :- "In case of converse situation namely where the accused persons are exonerated by the competent authorities/Tribunal in adjudication proceedings, one will have to see the reasons for such exoneration to determine whether these criminal proceedings should still continue. If the exoneration in departmental adjudication is on technical ground or by giving benefit of doubt and not on merits or the adjudication proceedings were on different facts, it would have no bearing on criminal proceedings. If, on the other hand, the exoneration in the adjudication proceedings is on merits and the concerned person(s) is/are innocent, and the criminal prosecution is also on the same set of facts and circumstances, the criminal prosecution cannot be allowed to continue. The reason is obvious criminal complaint is file....
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....ellants in the form of various letters and orders, issuance of such demand notice in a specified manner is not required in law. We do think that we cannot accede to this argument of the learned counsel for the revenue. Herein we may also notice that the learned Technical Member of the tribunal has rightly come to the conclusion that the various documents and orders which were sought to be treated as show cause notices by the appellate authority are inadequate to be treated as show cause notices contemplated under Rule 10 of the Rules or Section 11A of the Act. Even the Judicial Member in his order has taken almost a similar view by holding that letters either in the form of suggestion or advice or deemed notice issued prior to the finalisation of the classification cannot be taken note of as show cause notices for the recovery of demand, and we are in agreement with the said findings of the two Members of the tribunal. This is because of the fact that issuance of a show cause notice in a particular format is a mandatory requirement of law. The law requires the said notice to be issued under a specific provision of law and not as a correspondence or part of an order. The said notice....
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....nducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured; And the police officer shall record while making such arrest, his reasons in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest; 41-A Notice of appearance before police officer- (1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (3) Where such person complies....
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....posing offence under the above-mentioned sections of IPC. He has also drawn attention towards sections 122 as well as 132 of the U.P. Act which provides penalties for an offence having been found committed under the said Act, would be punishable and has again emphasized that since no service of notice has been effected of any fixed amount, which is being stated to have been violated by him, therefore, this kind of FIR is nothing but an abuse of the process of law. 13. On the other hand, learned A.G.A. has vehemently opposed for grant of bail and has drawn attention to the statement of Narendra Kumar, Deputy Commissioner, Commercial Tax, Sector Kosi, which was placed before the Court as case diary was received and the same was found annexed and it has been argued that in the said statement, he has fully supported the prosecution version as narrated in the FIR and further attention is drawn to the order of a Division bench of this Court dated 30.5.2019 passed in Crl. Misc. Writ Petition No. 7303 of 2019 Govind Enterprises vs. State of U.P. and others in which the applicant had sought quashing of FIR filed against him under the above-mentioned sections and the Division Bench had cons....