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TMI Blog2022 (12) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... 177/465/467/477/477A of the IPC. The petitioner has challenged the proceedings thereunder. The connected G. R. Case No. 5854 of 2015 is now pending in the trial court. The grounds of the petitioner's challenge as to the said particular proceedings against him can be summarised as follows: Firstly that the initiation a criminal proceeding is only illegal, mala fide and malicious against him. Mr. Chatterjee, learned advocate for the petitioner has referred to the two notices dated 8.4.2015 and 6.5.2015 respectively, to show that for the self same period the quantification of the alleged evaded tax was made differently by the Department, that is, @ Rs.13 crores and odd in the notice dated 8.4.2015 whereas an amount of Rs.3 crores and odd by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t him as mentioned earlier. It has further been submitted by Mr. Chatterjee that there is no sanction of the Commissioner before filing of the criminal case against his client, as enumerated in Section 88(12) of the said Act. It has further been submitted that during the pendency of proceedings against his client, a criminal proceeding shall also contravene the provisions made under Section 88(13) of the West Bengal Sales Tax Act, 1994. Mr. Sudip Ghosh, learned advocate for the State/opposite party has raised vehement objection as to the contentions and prayer of the petitioner. His primary ground of protest is that in this case there shall be no necessity for a sanction in a prescribed form, which, as a matter of fact, has not been presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould not be considered to be a repeat action of the department on the self same ground, liable to be set aside. He has taken this Court to the text of the said letter dated 06.05.2015 to submit that the notice as above along with the previous notice dated 8.4.2015 have been the notices for quantification of the turn over of the petitioner and should not be considered to be the assessment of penalty. It has also been submitted that provisions under Section 88(13) of the West Bengal Sales Tax Act, 1994 shall also not be applicable as no penalty has been imposed upon the petitioner as yet. According to the state/opposite party there shall be no application of the provision under Section 88 (12) of the said Act, 1994, in this case as the stag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 94, has provided for the civil consequences in case evasion of tax is detected, by imposition of penalty upon the dealer. Law has provided for affording adequate and reasonable opportunity to the alleged defaulter, before imposing any penalty amount upon him under this section. The Act of 1994 has also provided for initiation of criminal proceedings against contravention of the provisions of the Act. Section 88 Sub-section (12) and (13) may be resorted to, in this regard:- "88.(12) No court shall take cognizance of any offence under this Act or the rules made thereunder except with the previous sanction of the Commissioner, and no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate shall try such offence. (13) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary a proceeding which has already commenced and may culminate into imposition of penalty should be a deterrent factor for any prosecution to be initiated against the petitioner under Section 88 (13) of the Act or else the petitioner shall have to face both the proceedings under Section 76 of the Act and the criminal proceeding as well on the self same cause of action, for the self same alleged offence, to jeopardize his interests doubly. It is further noted that there is no sanction issued by the Commissioner before initiation of the criminal case against the petitioner. The submission made in this regard on behalf of the state is also not acceptable in so far as the specific provision of Act contained in Section 88 (12) would requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f same cause of action he has also been subjected to criminal proceedings as above. The criminal proceeding has been initiated without a 'sanction' order from the Commissioner, as envisaged in law to be mandatory precondition for initiation thereof. All these facts unfailingly point out to the inherent illegality and nullity of the proceedings initiated against the petitioner. There should not be any hesitation to hold that in case the said proceeding is allowed to be continued against the petitioner, the same would amount to be abuse of the process of court. Hence, on the discussion made as above it is found that the alleged criminal proceedings pursuant to Chatterjeehat Police Station Police Case No. 250 of 2015 dated 08.08.2015 under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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