New User   Login      
Tax Management India .com TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (11) TMI 169 - PUNJAB AND HARYANA HIGH COURT

2015 (11) TMI 169 - PUNJAB AND HARYANA HIGH COURT - TMI - Request for quashing of FIR - Recovery of service tax dues - Held that:- The moment petitioner received any demand put to him by the competent authority, he immediately deposited the amount of ₹ 1,05,705/-, which is so mentioned in the official communication (Annexure P-3). This amount deposited by the petitioner reflected in Annexure P-3, was towards service tax because this fact has also not been disputed by learned counsel for th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

. Having said that, this Court feels no hesitation to conclude that once the Act of 1994 was a special and complete Code in itself, wherein even the procedure for penalty has been provided, governing the fact situation as obtaining in the present case, registration of the impugned FIR was nothing but abuse of process of Court and the same cannot be sustained.

If any competent authority, after following the procedure laid down under the Act of 1994, comes to the conclusion that some am .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

or this reason as well. - as an abundant precaution that the competent authority under the Act of 1994, would be at liberty to proceed further against the petitioner, as per the procedure provided therein. If the competent authority, after following the procedure under the Act of 1994 arrives at a conclusion that petitioner is liable to pay any amount, he shall be duty bound to pay the same, in accordance with law. - Decided in favour of assessee. - CRM-M-29708-2014 (O&M) - Dated:- 11-9-2015 - M .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

eedings arising therefrom, including the order dated 16.07.2014, whereby charge was ordered to be framed against the petitioner. Notice of motion was issued and therefore, further proceedings before the learned trial Court were stayed. Reply has been filed on behalf of the respondent-State. Learned counsel for the petitioner submits that only alleged irregularity committed by the petitioner, was the alleged non-payment of service tax of ₹ 1,05,705/-. He refers to the official communication .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

emoved, vide Annexure P-3. He submits that after deposit of amount in question, the investigating agency ought to have prepared the cancellation report in favour of the petitioner. Learned counsel for the petitioner would next contend that no competent authority has ever held the petitioner liable to pay any other amount, by resorting to the procedure laid down under Section 75 of the Finance Act, 1994 ('Act of 1994' for short). He further submits that since the Act of 1994 was a complet .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

procedure provided under the Act of 1994 would arrive at a conclusion, holding the petitioner liable for any amount, petitioner would not be averse in paying the said amount. He prays for quashing the impugned FIR and the consequential proceedings arising therefrom, including the impugned order of charge (Annexure P-5), by allowing the present petition. On the other hand, learned counsel for the State, on instructions from ASI Shobha Singh, Police Station Manesar, Gurgaon, submits that when the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the parties and after careful perusal of the record of the case, this Court is of the considered opinion that in the given fact situation of the present case, noticed hereinabove, instant petition deserves to be allowed and the impugned FIR as well as the consequential criminal proceedings arising therefrom, are liable to be quashed, for the following more than one reasons. It has gone undisputed on record that the Act of 1994 is a special and complete Code in itself. Before proceeding further, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

er annum, as is for the time being fixed by the Central Government, by Notification in the Official Gazette for the period by which such crediting of the tax or any part thereof is delayed. Provided: - that in the case of a service provider, whose value of taxable services provided in a financial year does not exceed sixty lakh rupees during any of the financial years covered by the notice or during the last preceding financial year, as the case may be, such rate of interest, shall be reduced by .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nth, whichever is higher, starting with the first day after the due date till the date of actual payment of the outstanding amount of service tax: Provided that the total amount of the penalty payable in terms of this section shall not exceed the service tax payable in terms of this section shall not exceed the service tax payable. There is no denial to the fact that the moment petitioner received any demand put to him by the competent authority, he immediately deposited the amount of ₹ 1, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ecial Act, which would prevail upon the general provisions, he had no answer and rightly so, it being a matter of record. It has also not been argued on behalf of the respondent-State that any competent authority, after following the procedure provided under the abovesaid relevant provisions of law contained in the Act of 1994, has arrived at a conclusion, pointing out any financial liability of the petitioner, which might have been outstanding against him. Having said that, this Court feels no .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y the Hon'ble Supreme Court in paras 15, 16 & 20 of the judgment, which can be gainfully followed in the present case, read as under: - TOHO being a special statute, Section 4 of the Code, which ordinarily would be applicable for investigation into a cognizable offence or the other provisions, may not be applicable. Section 4 provides for investigation, inquiry, trial, etc. according to the provisions of the Code. Sub-section (2) of Section 4, however, specifically provides that offences .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

all prevail over the provisions of the Code. The investigation in terms of Section 13(3)(iv) of TOHO, thus, must be conducted by an authorized officer. Nobody else could do it. For the aforementioned reasons, the officer incharge of the Gurgaon Police Station had no other option but to hand over the investigation to the appropriate authority. Xxx xxx xxx It is a well-settled principle of law that if a special statute lays down procedures, the ones laid down under the general statutes shall not b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rovisions of the Code and TOHO and as soon as the area of conflict reaches, TOHO shall prevail over the Code. Ordinarily, thus, although in terms of the Code, the respondent upon completion of investigation and upon obtaining remand of the accused from time to time, was required to file a police report, it was precluded from doing so by reason of the provisions contained in Section 22 of TOHO. To put it differently, upon completion of the investigation, an authorized officer could only file a co .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version