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2008 DIGILAW 869 (CAL)

Krishna Kr. Mantri v. State

2008-08-27

SANKAR PRASAD MITRA

body2008
JUDGMENT 1. Heard the learned Advocates appearing for the respective parties. 2. The application under section 482 of the Code of Criminal Procedure is taken up for hearing in the presence of the learned Advocates for both the sides. 3. In this application the petitioner has prayed for quashing the entire proceedings relating to Posta Police Station 'D2' Case No.3 of 2008 dated 3.1.2008 under sections 93(4)(C), 93(6), 93(7), 93(10) of the West Bengal Value Added Tax Act, 2003 read with sections 406, 457, 478, 120B of the Indian Penal Code. 4. It appears from the submissions made by the learned Advocates for both sides as also the application including the documents annexed thereto, that O.P. No.3 lodged FIR against the petitioner for evasion of tax in respect of Way Bill No.A-0958030. 5. On 13.01.2007 officials of the Central Section of the Commercial Taxes Directorate intercepted the goods vehicle and it was found on enquiry that in almost all cases, the consignors from whom Sri Mantri claimed to have purchased/imported the goods were either non-existent or have denied the said transaction and in all cases those taxable goods were transported by M/s. Aman Transport Service. Accordingly, the penalty proceeding was initiated by the department against the petitioner which was decided ex parte by the concerned officer on 13.7.2007 and against that order, the petitioner preferred an appeal before the learned Tribunal and the learned Tribunal on 6.5.2008 after setting aside the penalty order dated 13th July, 2007 directed the concerned Sales Tax Officer, Central Section for rehearing of the matter after giving reasonable opportunities of being heard to the petitioner. 6. When the penalty proceeding was pending the O.P. No.3 filed FIR against the petitioner, with a view to prosecuting the petitioner for violation of several sections of law as indicated above and in the FIR the O.P. No.3 in addition to Way Bill No.A-0958030 included several other Way Bills in respect of which there was evasion of tax by the petitioner. It appears from the arguments advanced by both sides that barring Way Bill No.A-0958030, no penalty proceeding has yet been initiated against the petitioner by the department in respect of other Way Bills as indicated in the FIR. 7. Mr. It appears from the arguments advanced by both sides that barring Way Bill No.A-0958030, no penalty proceeding has yet been initiated against the petitioner by the department in respect of other Way Bills as indicated in the FIR. 7. Mr. Moitra drawing my attention to section 93(4) of the West Bengal Value Added Tax Act, 2003 submits that when a penalty proceeding was initiated against the petitioner, the criminal case can not be continued till the final result is achieved in respect of the penalty proceeding. In this regard he referred to sub-section (14) of section 93 of the West Bengal Value Added Tax, Act, 2003 which runs as follows : "Notwithstanding anything contained elsewhere, in the Act, no prosecution for any offence enumerated hereinbefore shall be instituted in respect of the same fact for which a penalty has been imposed under any other provisions of the Act and subsequently paid by the dealer and no such penalty shall be imposed vice versa." 8. It is true that the offence committed by the petitioner is an economic offence but sub-section (14) of section 93 of the West Bengal Value Added Tax Act, 2003 has given a privilege to the accused when a penalty proceeding is pending in respect of the same set of facts and during pendency of such penalty proceeding, if a criminal case is initiated on the same set of fact, in that case the said section gives protection to an accused because in view of a decision in the case of Commissioner of Income-Tax, Mumbai vs. Bhupen Champak Lal Dal & Anr., reported in JT 2001 Vo1.3 SC 271, it has been held that "the prosecution in criminal law and proceedings arising under the Act are undoubtedly independent proceedings and, therefore, there is no impediment in law for the criminal proceedings to proceed even during the pendency of the proceedings under the Act. However, a wholesome rule will have to be adopted in matters of this nature where Courts have taken the view that when the conclusions arrived at by the appellate authorities have a relevance and bearing upon the conclusions to be reached in the case necessarily one authority will have to await the outcome of the other authority". 9. However, a wholesome rule will have to be adopted in matters of this nature where Courts have taken the view that when the conclusions arrived at by the appellate authorities have a relevance and bearing upon the conclusions to be reached in the case necessarily one authority will have to await the outcome of the other authority". 9. It is true Income-Tax Act does not give any protection to an assessee but under the West Bengal Value Added Tax Act, 2003 such protection is given to the accused who has been prosecuted for evasion of tax. It is apparently clear save and except the Way Bill No.A-0958030 no other penalty proceeding is pending in respect of the other Way Bills mentioned in the FIR against the petitioner. 10. In the circumstances, I think that for effective adjudication in the matter in respect of the case, it is desirable that the criminal case which is pending against the petitioner arising out of Way Bill No.A-0958030 be stayed till the disposal of the penalty proceeding pending against the petitioner before the authority concerned. However, the criminal case started on the basis of the FIR dated 3.01.2008 against the petitioner in respect of the other Way Bills mentioned in the FIR shall continue. 11. The matter is thus disposed of. 12. Criminal Section is directed to give certified copy of this order to the respective parties, if applied for. Sankar Prasad Mitra, J.: Matter disposed of.