TMI Blog2010 (4) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... er proceedings to be further proceeded with against the petitioner in this regard would not serve any purpose at all. In the light of the same, the proceedings under challenge are hereby quashed. Accordingly, the criminal petition is hereby allowed. - 6753 of 2007 - - - Dated:- 6-4-2010 - NARAYANA P.S. , J. ORDER:- P. S. NARAYANA J.- This criminal petition is filed under section 482 of the Criminal Procedure Code (hereinafter in short referred to as, the Code for the purpose of convenience) praying for quashing of the charge sheet in C.C. No. 613/2007 on the file of II Additional J.F.C.M., Kovvur, West Godavari District and pass such other suitable orders. Sri S. Sriramachandra Murthy, the learned counsel representing the petitioner, had taken this court through the relevant provisions of the Code and also the relevant provisions of the Andhra Pradesh Value Added Tax Act, 2005 (hereinafter in short referred to as, the Act for the purpose of convenience) and would maintain that the said Act being a complete Act by itself and inasmuch as for the illegality if any committed by the assessee in filing returns, specific provisions are there, resorting to the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34 deposited due as tax with correct challan No. 146, dated April 9, 2007. However, not being satisfied the third respondent proceeded to invoke the penal provisions under the Act, i.e., sections 51 and 22(2) of the Act aforesaid. The charge sheet against the petitioner specifies sections 417, 420 and 471 of the I.P.C. Four witnesses are shown in the charge sheet in the list of witnesses and the memo of evidence and the short details which may be spoken by the respective witnesses also had been furnished. Section 39 of the Code dealing with public to give information of certain offences reads as hereunder: (1) Every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860) namely,- (i) Sections 121 to 126, both inclusive, and section 130 (that is to say, offences against the State specified in Chapter VI of the said Code); (ii) Sections 143, 144, 145, 147 and 148 (that is to say, offences against the public tranquillity specified in Chapter VIII of the said Code); (iii) Sections 161 to 165A, both inclusive (that is to say, offences relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the offence punishable under section 420, I.P.C. is concerned. It is no doubt not in controversy that the offences with which the petitioner herein had been charged are the offences under the Indian Penal Code-sections 417, 420 and 471, I.P.C., as already aforesaid. The main allegation is that the petitioner cheated the Government by way of fake challans and thereby committed the offences punishable under sections 417, 420 and 471, I.P.C. It is also not in any serious dispute that the said amounts due to the Government as tax already had been paid. Section 2 of the Act deals with definitions . Section 21 of the Act deals with Assessments ; Section 22 of the Act deals with due date for payment of tax ; section 22(2) of the Act specifies: If any dealer fails to pay the tax due on the basis of return submitted by him or fails to pay any tax assessed or penalty levied or any other amount due under the Act, within the time prescribed or specified therefor, he shall pay, in addition to the amount of such tax or penalty or any other amount, interest calculated at the rate of one per cent per month for the period of delay from such prescribed or specified date for its paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules also had been pointed out and certain submissions further had been made. It is also pertinent to note that section 53(3) of the Act reads as hereunder: Any dealer who has under-declared tax, and where it is established that fraud or wilful neglect has been committed, he shall be liable to pay penalty equal to the tax under-declared; besides being liable for prosecution: Provided that before levying penalty under this section, the authority prescribed shall give the dealer a reasonable opportunity of being heard. The relevant portions of the commentary on value added tax by N.K. Ghanshyam Upadhyay, also had been relied on. Further, strong reliance was placed on Rajesh Kumar v. Deputy Commissioner of Income-tax [2006] 287 ITR 91 (SC); [2007] 2 SCC 181 wherein the apex court while dealing with the provisions of the Income-tax Act, 1961 observed: If an assessee files a return, the same is not presumed to be incorrect. When the assessing officer, however, intends to pass an order of assessment, he may take recourse to various steps including the one of asking the assessee to disclose documents which are in his power or possession. He may also ask third parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concealed the particulars of his income and had furnished inaccurate particulars thereof. Even after the imposition of penalty the assessee was visited with a complaint under section 277 of the Act for his prosecution. The trial court after due consideration of the entire material on the record acquitted the assessee of the charge levelled against him. On appeal to High Court, it was held (at page 522 of ITR): On facts, it was merely a case of negligence on the part of the assessee to have accepted the figures supplied to him by his clerical staff, which figures were incorporated in the return and which the assessee signed and verified as a routine. Therefore, after a penalty was imposed on the assessee, his further prosecution was not called for. It was also further held that in an appeal against acquittal, the High Court cannot be called upon to reassess the credibility of the evidence when the view taken by the trial court was not shown to be so patently erroneous as to cause miscarriage of justice. Further, strong reliance was placed on Sri Venkateswara Rice Mill v. Special Commercial Tax Officer (Evasions), Guntur [1970] 26 STC 208 (AP) wherein the Special Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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