TMI Blog2011 (6) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... vas for the petitioners T.P.Manoharan, Special Public Prosecutor, Commercial Taxes (Pondy.), for the respondent ORDER By consent of both sides, the matter is taken up for final hearing. The petition is filed seeking a direction to call for the records in C. C. Nos. 21 and 22 of 2009 on the file of the learned Judicial Magistrate, Mane, under sections 49(2)(a) of the Pondicherry General Sales Tax Act, 1967 rules 14 and 16 of the CST (Pondicherry) Rules, 1967 read with 193, 409, 468 IPC and quash the same. The petitioners are the partners of Surya Service Station, a retail outlet of petrol, diesel and petroleum products at Palloor, Mahe, Union Territory of Pondicherry. They are registered under the Pondicherry General Sales Tax Act, 1967, under the Central Sales Tax Act, 1956 and under the Puducherry Value Added Tax Act, 2007. They are liable for commercial tax for the total and taxable turnover. The partnership firm (hereinafter referred as, Firm ) filed a return of annual turnover in form A1 for the year 2000-01 and also for the year 2001-02. For the year ended up to March 31, 2001, the firm reported a total and taxable turnover of ₹ 4,18,85,213.56 with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st. 3. The allegation that the returns were submitted with incorrect particulars will not attract forgery and there is no question of attracting an offence under section 468 of the Indian Penal Code. 4. Similarly, an offence under section 193, IPC would not be attracted as the petitioner had not furnished wrong returns. 5. The assessment order was passed on January 5, 2005 and subsequently, the Pondicherry General Sales Tax Act itself was replaced by the Puducherry Value Added Tax Act, 2007. Therefore, the respondent cannot invoke the provisions of section 49(2) (a) of the Act 1967 as the same was repealed. 6. Invoking section 81 of the Puducherry Value Added Tax Act, 2007 is not correct as the said provision is not a substantive provision and it is only repeal and savings provision. 7. The complaint is not maintainable under section 52(2) of the Act 1957. Reiterating the above grounds, Mr. R. Yasod Vardhan, learned senior counsel for the petitioner, would submit that the respondent has invoked the offences under the Indian Penal Code only to get over the point of limitation and the respondent is not an authorised officer to file a complaint invoking the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1967, under the Puducherry Value Added Tax Act, 2007 (VAT 2007). The petitioners have filed return for the annual turnover for the years 2000-01 and 2001-02 before the Commercial Tax Officer, Mahe. They have also produced the books of accounts to determine the total and taxable turnover and to assess the tax due. Accordingly, for the year 2000-01 a sum of ₹ 4,18,85,213.56 was shown as taxable turnover and the tax was assessed at ₹ 50,25,809.52. Similarly, for the year 2001-02 a sum of ₹ 4,32,53,519.15 was shown as taxable turnover and the tax was fixed at ₹ 51,90,422.28. Admittedly, the assessment order was passed on January 5, 2005. According to the complainant, he obtained form C declaration from M/s. Hindustan Petroleum Corporation Limited from where the firm has purchased petroleum products. The form C for the year 2000-02 would reveal the total purchase of ₹ 7,78,30,704.92 and for the year 2001-02 the value was ₹ 7,38,74,437.58. Therefore, the Commercial Tax Officer found a huge difference of a sum of ₹ 3,47,03,278.26 for the year 2000-01 and ₹ 2,29,34,144.31 for the year 2001-02. According to the complainant, these t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after making such enquiry as it may consider necessary and after giving the dealer a reasonable opportunity to show cause against such assessment. (2) Where, for any reason, the whole or any part of the turnover of business of a dealer has been assessed at a rate lower than the rate at which it is assessable, the assessing authority may, at any time within a period of five years from the expiry of the year to which the return under this Act relates, reassess the tax due after making such enquiry as it may consider necessary and after giving the dealer a reasonable opportunity to show cause against such reassessment. (3) In making an assessment under sub-section (1), the assessing authority may, if it is satisfied that the escape from assessment is due to non-disclosure of assessable turnover, by the dealer, direct the dealer to pay, in addition to the tax assessed under sub-section (1), a penalty of double the amount of the tax so assessed:- Provided that no penalty shall be imposed under this section unless the dealer affected has had a reasonable opportunity of showing cause against such imposition. (4) The powers under sub-section (1) or sub-section (2) may be exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Act, no court shall take cognizance of an offence under the Act or Rules except with the previous sanction of the Commissioner. Therefore, the previous sanction of the Commissioner is required to launch a prosecution only for any offence under the Act or Rules. The penal offences are not included. Section 193 of IPC deals with punishment for false evidence. Section 193, IPC reads as follows:- 193. Punishment for false evidence:- Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. Section 409 of the Indian Penal Code deals with criminal breach of trust by public servant, banker, merchant or agent. Section 468 deals with an offence of forgery for the purpose of cheating. The offences under the penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complainant is a public servant or court, clause (a) of the proviso to section 200 of the Code raises an implied statutory presumption that the complaint has been made responsibly and bona fide and not falsely or vexatiously. On account of such implied presumption, where the complainant is a public servant, the statute exempts examination of the complainant and the witnesses, before issuing process. However, considering the facts of the case, the above decision is not applicable to the case on hand. He also relied on a decision reported in [2003] 4 SCC 139 (Deputy Chief Controller of Imports and Exports v. Roshanlal Agarwal). 11. The High Court has gone to the extent of saying that as the Deputy Chief Controller of Imports and Exports had not been examined as a witness, the procedure prescribed by section 200, Cr. P. C had not been followed and, therefore, the order passed by the Magistrate taking cognizance of the offences was illegal. With respect, we find it difficult to comprehend the aforesaid reasoning of the High Court. Section 6 of the Imports and Exports (Control) Act provides that no court shall take cognizance of any offence punishable under section 5 excep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out:- (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cau ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
