Home Case Index All Cases VAT and Sales Tax VAT and Sales Tax + HC VAT and Sales Tax - 2017 (9) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (9) TMI 285 - HC - VAT and Sales TaxBail u/s 438 of the Code of Criminal Procedure, 1973 - false claim of sales against Form F, Form C, Form H under CST act - It is alleged that after obtaining the delivery of the goods in New Delhi under the guise of its branch transfer, the goods were in fact sold in the State of Gujarat; but a show was made as if the goods are sold in New Delhi, Haryana and Rajasthan by issuing Form ‘C’ in the name of certain business people most of whom were dealing in ready made garments. It is alleged that, in fact, such persons had received ready made garments referable to Form ‘C’ in question, but a wrongful claim was made as if tobacco / its products were sold to them. It is alleged that in some cases even the refund was claimed. Held that: - It cannot be disputed that as and when necessary and if the facts of the case so requires, an authorized Police Officer can obtain the custody of a person for investigation / interrogation either with or without warrant as the case may be. The arrest, however, cannot be made on mere imagination; but it can always be made inter alia on reasonable suspicion on fortification of the “reason to believe” on the basis of the information of the person having committed the offence. The necessity of the arrest of a person would, therefore, depend upon the facts and circumstances of each case and no straight jacket formula can be laid for that purpose. It is a settled legal position that a person can be proceeded against and can be tried even without arresting him. In so far as facts of the present case are concerned, it appears that the petitioners are sought to be proceeded against for the offences in question not in individual capacity but as Directors of the Company afore stated. The FIR avers the commission of the offence particularly by the Company by allegedly employing dubious method for avoidance of the tax as above stated. The Company, however, is not made a party to the proceedings and the FIR does not specify as to which of the nine Directors of the Company had played an active role. In this context, it would be relevant to refer to Sections 85 (1)(b)(c)(e)(f)(g), 85 (2)(g), 85(4) and Section 85(6) of the Gujarat Value Added Tax Act, 2003 (for short ‘VAT Act’), which deal with the procedure in relation to the offences by Company etc. The person incharge of the affairs of the Company at the time of commission of the offence and who was responsible to the Company for the conduct of its business is the person, who is deemed to be guilty of the offences; along with the Company. FIR contains averments in general against the directors and no other material is shown in agreement with above referred provision is placed on record of the case or shown to this Court. The petitioners are sought to be charged with offences under Sections 85(1)(b),(c),(e), (f),(g) as also Section 85(2)(g) and 85(C) of the VAT Act - It will be relevant to note that definition of dealer contained in Section 2(10) of the GST Act makes the dealer which would include CSA responsible for tax and the material has been produced on record indicating the movements of goods subsequent to issuance of Form ‘F’ by the CSAs and not the petitioners. The needle of suspicion is, therefore, rightly directed by the investigator against the said dealers and in absence of strong suspicion, sufficient enough to divert such needle of suspicion to the Company or its Directors, it is not possible at this stage to say that if the dealer turns out to be fake, the Company or its Directors would be beneficiaries as argued by the learned PP. It is also required to be noted that in absence of the material against the petitioners, so far the petitioners were not contemplated to be arrested and in the opinion of this Court rightly so. It is true that the statement of coaccused can form the basis for investigation at preliminary stage of anticipatory bail. However, the foregoing discussion would show that prima facie, the case against the petitioners is based upon imagination rather than the suspicion contemplated under Section 41 of the Cr.P.C., and therefore, even if the statement of the coaccused is taken into consideration, the case for admitting the petitioners to bail is made out. This Court, therefore, orders bail for the petitioners in anticipation of their arrest. Bail application allowed - the applicants shall be released on bail on their furnishing a personal bond of ₹ 1,00,000/- each with one surety each of the like amount - decided in favor of applicant.
|