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TMI Blog2010 (4) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel also specifically pointed out to the offences with which the petitioner had been charged with and would maintain that the complainant though being the statutory authority, had acted beyond the purview of the provisions of the Act aforesaid and if it is to be taken that the complainant to be treated as a private person, such complaint itself cannot be maintained in the light of section 39 of the Code. The learned counsel also specifically pointed out to the absence of written consent and would maintain that this is nothing but abuse of process of court and hence the proceedings are liable to be quashed. Per contra, the learned Additional Public Prosecutor would maintain that these are all offences under the Indian Penal Code and hence the question of obtaining written consent as contemplated by the provisions of the Act would not arise. The learned Additional Public Prosecutor also would contend that in the light of the specific allegations made in the charge sheet, this is not a fit matter to be interfered with under section 482 of the Code. Heard the counsel and perused the contents of the criminal petition, the grounds specifically raised therein, the contents of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (that is to say, offences relating to adulteration of food and drugs, etc.); (v) Sections 302, 303 and 304 (that is to say, offences affecting life); (v)(a) Section 364A (that is to say, offence relating to kidnapping for ransom, etc.); (vi) Section 382 (that is to say, offence of theft after preparation made for causing, death, hurt or restraint in order to the committing of the theft); (vii) Sections 392 to 399, both inclusive and section 402 (that is to say, offences (if robbery and dacoity)); (viii) Section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc.); (ix) Sections 431 to 439, both inclusive (that is to say, offence of mischief against property); (x) Sections 449 and 450 (that is to say, offences of house-trespass); and (xii) Sections 489A to 489E, both inclusive (that is to say, offences relating to currency notes and bank notes); shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest magistrate or police officer of such commission or intention. (2) For the purposes of this section, the term 'offence' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a month shall mean a period of 30 days." Chapter VIII of the Act deals with "offences and penalties". Section 49 of the Act deals with "penalty for failure to register". Section 50 of the Act deals with "penalty for failure to file a return". Likewise, section 51 of the Act deals with "penalty for failure to pay tax when due". Further, section 52 of the Act deals with "penalty for assessment issued for failure to file a return". Section 53 of the Act deals with "penalty for failure to declare tax due". Section 54 of the Act deals with "penalty for failure to use or misuse of TIN and GRN". Section 55 deals with "penalty for issue of tax invoice and for the use of false tax invoices". Section 56 of the Act deals with "penalty for failure to maintain records". Section 57 of the Act deals with "penalty for unauthorized/excess collection of tax". Section 58 of the Act deals with "prosecution for offences" and section 59 of the Act deals with "offences of obstructing the authority". It is pertinent to note that section 61 of the Act deals with "compounding of offences". It is however brought to the notice of this court that this provision had not been invoked. Section 62 of the Act i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al proceeding. The assessment proceeding, therefore, is a part of judicial process. When a statutory power is exercised by the assessing authority in exercise of its judicial function which is detrimental to the assessee, the same is not and cannot be administrative in nature. It stricto sensu is also not quasi-judicial. The prejudice to the assessee, if an order is passed under section 142(2A) of the Act, is apparent on the face of the statutory provision. He has to undergo the process of further accounting despite the audit conducted in terms of section 44AB." Further strong reliance was placed on Kuldip Chopra, I.T.O. v. Sohan Singh Dhiman [1977] 110 ITR 521 (P&H) wherein while dealing with the aspect of satisfactory explanation given by the assessee for furnishing wrong figures in return and the applicability of doctrine of mens rea for prosecution proceedings after imposition of penalty and while considering whether prosecution will lie in every case when a wrong statement is made, the Division Bench of the Punjab and Haryana High Court held (at pages 521 and 522 of ITR): "Section 277 of the Income-tax Act, 1961, lays down that if a person makes a statement in any verificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accounts maintained by the petitioner were incorrect and a notice was then issued calling upon the petitioner to show cause why action should not be taken against him by launching a prosecution under section 31 of the Andhra Pradesh General Sales Tax Act, 1957, for contravention of the provisions of section 25 of the Act and on the petitioner admitting the offence in writing and offering to get the offence compounded by paying a sum of Rs. 1,000, a sum of Rs. 1,000 as compounding fee and Rs. 3,000 as tax, were collected from him, it was held that the Special Commercial Tax Officer had no jurisdiction under section 32 of the Act to collect Rs. 3,000 as tax in addition to the compounding fee of Rs. 1,000. It was further held (at pages 208 and 209 of STC): "It is only in the case of failure to pay tax or evasion of any tax recoverable under the provisions of the Act that composition of offence is permissible under clause (a) of sub-section (1) of section 32. All other cases not covered by clause (a) come within the ambit of clause (b), which says that the prescribed authority may by way of composition accept a sum of money not exceeding Rs. 1,000. As the offence committed by the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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