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2007 DIGILAW 1049 (PAT)

Satish Mishra v. State Of Bihar

2007-07-02

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. Criminal Misc. No. 25057 of 2004 has been filed by one Satish Mishra, the Proprietor of M/s. Bokaro Carrying Corporation (hereinafter referred to as "the Company") and the employees of the said Company who are facing prosecution under Ss. 420, 468, 471/34 of the Indian Penal Code and 49 of the Bihar Finance Act, 1981 (hereinafter referred to as "the Act") in connection with Alamganj P.S. Case No. 81 of 2004. In Cr. Misc. No. 25052 of 2004 the said Satish Mishra, Proprietor of M/s. Bokaro Carrying Corporation is sought to be prosecuted under Ss. 420, 468, 471/34 of the Indian Penal Code and 49 of the Act, in connection with Alamganj P.S. case No. 58 of 2004. Since both the cases relate to the same petitioner and are in connection with his business they have been heard together with the consent of the parties and is being disposed of by this common order. 2. Alamganj P.S. Case No. 81 of 2004 was registered on the basis of a written report submitted by one Jit Narain Prasad, Assistant Commissioner, Commercial Taxes, Headquarter (Investigation) who alleged that he raided the premises of the Company at Chhoti Pahari on 28.2.2004 and detected that the goods carried by the Company having been brought by the Company from outside the State were not accompanied with bill/chalan and other relevant documents and was with the intention to evade tax by the petitioner herein which was in violation of Sec. 31(2)(b) read with Sec. 33(5) of the Act. Accordingly the said goods were seized. On the basis of the said written report Alamganj P.S. Case No. 81 of 2004 was registered and cognizance was taken by the Sub Divisional Judicial Magistrate, Patna city on 31.3.2004. 3. In Alamganj P.S. Case No. 58 of 2004 the said case was registered on the basis of the written report submitted by one Krishna Singh, Assistant Commissioner, Headquarter (Investigation) who is alleged to have raided the godown premises of petitioner, Satish Mishra, on 28.2.2004 and in course thereof certain goods were seized u/s. 33(5) of the Act which allegedly had come from outside the State without relevant documents and was with the intention to evade tax. It was also alleged that M/s. Relaxo Co. It was also alleged that M/s. Relaxo Co. was transporting goods through the petitioners Carrier without document with the intention to evade tax and as such there is violation of Sec. 31(2)(b) read with Sec. 33(5) of the Act. 4. The learned counsel for the petitioner(s) in both cases at the very outset sought to raise a preliminary objection to the maintenance of the complaint cases. It has been submitted that no prior sanction for prosecution had been obtained by the informant as required by Sec. 5(1) of the Act and as such the prosecution of the petitioner(s) of both the cases was not only unwarranted but was also illegal and taking of cognizance in both the cases of alleged offence was liable to be quashed. 5. The Standing Counsel for the Revenue in course of his argument submitted that the absence of sanction is not fatal for filing of complaint and again for prosecution. 6. There is another aspect of the matter. It appears that the Bokaro Carrying Corporation had preferred appeals against levying of penalty for the aforesaid offences before the J.C.C.T. (Appeal) Central Division, Patna, who had dismissed the appeals by confirming the order of penalty for violation of the provisions of the Act in respect of the inspection held on 28.2.2004. On preferring revision bearing Revision Case Nos. PT-193-194/2004 the Commercial Taxes Tribunal, Bihar, Patna by order dated 6.10.2006 set aside the orders levying penalty for the offences aforesaid on a finding that the revenue had completely failed to prove the case of evasion of tax against the petitioners on fact as also on law. It was further submitted by the learned counsel for the petitioners that by virtue of the order passed in Revision Cases by the Tribunal the order had reached a finality and the Commercial Taxes Department could not have circumvented the order of the Tribunal and directed for launching prosecution. 7. The law is well settled that when once the order of adjudication is set aside or quashed and the assessees contention is accepted and upheld by the Tribunal, the order of the Tribunal must be taken as the very basis for quashing the proceeding arising from prosecution launched by the Revenue. 7. The law is well settled that when once the order of adjudication is set aside or quashed and the assessees contention is accepted and upheld by the Tribunal, the order of the Tribunal must be taken as the very basis for quashing the proceeding arising from prosecution launched by the Revenue. There are a catena of decisions of the Apex Court in this regard and reference can be made to the cases of Patna Guinea House V/s. Commissioner of Income Tax, 2000 243 ITR 274 , Ashirvad Enterprises V/s. The State of Bihar, 2004 266 ITR 578 and K.C. Builders V/s. The Assistant C.I.T., 2004 265 ITR 562. 8. Due regard being had to the facts and circumstances of the case and the discussions above the prosecution of the petitioners cannot be sustained in law. Accordingly the order taking cognizance in both the cases aforesaid are hereby quashed and the applications are allowed.